[House Report 110-730]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-730
HOUSE OF REPRESENTATIVES
2d Session Part 2
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ADA AMENDMENTS ACT OF 2008
_______
June 23, 2008.--Ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3195]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3195) to restore the intent and protections of the
Americans with Disabilities Act of 1990, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 5
Background and Need for the Legislation.......................... 5
Hearings......................................................... 11
Committee Consideration.......................................... 11
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 12
New Budget Authority and Tax Expenditures........................ 12
Congressional Budget Office Cost Estimate........................ 12
Performance Goals and Objectives................................. 14
Constitutional Authority Statement............................... 14
Advisory on Earmarks............................................. 14
Application of Law to the Legislative Branch..................... 15
Section-by-Section Analysis...................................... 15
Changes in Existing Law Made by the Bill, as Reported............ 23
Additional Views................................................. 30
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``ADA Amendments Act of 2008''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) in enacting the Americans with Disabilities Act of 1990
(ADA), Congress intended that the Act ``provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities'' and
provide broad coverage;
(2) in enacting the ADA, Congress recognized that physical
and mental disabilities in no way diminish a person's right to
fully participate in all aspects of society, but that people
with physical or mental disabilities are frequently precluded
from doing so because of prejudice, antiquated attitudes, or
the failure to remove societal and institutional barriers;
(3) while Congress expected that the definition of
disability under the ADA would be interpreted consistently with
how courts had applied the definition of handicap under the
Rehabilitation Act of 1973, that expectation has not been
fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999) and its companion cases,
and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002) have narrowed the broad scope of protection
intended to be afforded by the ADA, thus eliminating protection
for many individuals whom Congress intended to protect; and
(5) as a result of these Supreme Court cases, lower courts
have incorrectly found in individual cases that people with a
range of substantially limiting impairments are not people with
disabilities.
(b) Purposes.--The purposes of this Act are--
(1) to carry out the ADA's objectives of providing ``a
clear and comprehensive national mandate for the elimination of
discrimination'' and ``clear, strong, consistent, enforceable
standards addressing discrimination'' by reinstating a broad
scope of protection to be available under the ADA;
(2) to reject the requirement enunciated by the Supreme
Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)
and its companion cases that whether an impairment
substantially limits a major life activity is to be determined
with reference to the ameliorative effects of mitigating
measures;
(3) to reject the Supreme Court's reasoning in Sutton v.
United Airlines, Inc., 527 U.S. 471 (1999) with regard to
coverage under the third prong of the definition of disability
and to reinstate the reasoning of the Supreme Court in School
Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set
forth a broad view of the third prong of the definition of
handicap under the Rehabilitation Act of 1973;
(4) to reject the standards enunciated by the Supreme Court
in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184 (2002), that the terms ``substantially'' and ``major''
in the definition of disability under the ADA ``need to be
interpreted strictly to create a demanding standard for
qualifying as disabled,'' and that to be substantially limited
in performing a major life activity under the ADA ``an
individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of
central importance to most people's daily lives''; and
(5) to provide a new definition of ``substantially limits''
to indicate that Congress intends to depart from the strict and
demanding standard applied by the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams and by numerous lower
courts.
SEC. 3. CODIFIED FINDINGS.
Section 2(a) of the Americans with Disabilities Act of 1990 (42
U.S.C. 12101) is amended--
(1) by amending paragraph (1) to read as follows:
``(1) physical or mental disabilities in no way diminish a
person's right to fully participate in all aspects of society,
yet many people with physical or mental disabilities have been
precluded from doing so because of discrimination; others who
have a record of a disability or are regarded as having a
disability also have been subjected to discrimination;''; and
(2) by striking paragraph (7).
SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.
(a) Definition of Disability.--Section 3 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102) is amended to read as
follows:
``SEC. 3. DEFINITION OF DISABILITY.
``As used in this Act:
``(1) Disability.--The term `disability' means, with
respect to an individual--
``(A) a physical or mental impairment that
substantially limits one or more major life activities
of such individual;
``(B) a record of such an impairment; or
``(C) being regarded as having such an impairment
(as described in paragraph (4)).
``(2) Substantially limits.--The term `substantially
limits' means materially restricts.
``(3) Major life activities.--
``(A) In general.--For purposes of paragraph (1),
major life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating and working.
``(B) Major bodily functions.--For purposes of
paragraph (1), a major life activity also includes the
operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive
functions.
``(4) Regarded as having such an impairment.--For purposes
of paragraph (1)(C):
``(A) An individual meets the requirement of `being
regarded as having such an impairment' if the
individual establishes that he or she has been
subjected to an action prohibited under this Act
because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is
perceived to limit a major life activity.
``(B) Paragraph (1)(C) shall not apply to
impairments that are transitory and minor. A transitory
impairment is an impairment with an actual or expected
duration of 6 months or less.
``(5) Rules of construction regarding the definition of
disability.--The definition of `disability' in paragraph (1)
shall be construed in accordance with the following:
``(A) To achieve the remedial purposes of this Act,
the definition of `disability' in paragraph (1) shall
be construed broadly.
``(B) An impairment that substantially limits one
major life activity need not limit other major life
activities in order to be considered a disability.
``(C) An impairment that is episodic or in
remission is a disability if it would substantially
limit a major life activity when active.
``(D)(i) The determination of whether an impairment
substantially limits a major life activity shall be
made without regard to the ameliorative effects of
mitigating measures such as--
``(I) medication, medical supplies,
equipment, or appliances, low-vision devices
(which do not include ordinary eyeglasses or
contact lenses), prosthetics including limbs
and devices, hearing aids and cochlear implants
or other implantable hearing devices, mobility
devices, or oxygen therapy equipment and
supplies;
``(II) use of assistive technology;
``(III) reasonable accommodations or
auxiliary aids or services; or
``(IV) learned behavioral or adaptive
neurological modifications.
``(ii) The ameliorative effects of the mitigating
measures of ordinary eyeglasses or contact lenses shall
be considered in determining whether an impairment
substantially limits a major life activity.
``(iii) As used in this subparagraph--
``(I) the term `ordinary eyeglasses or
contact lenses' means lenses that are intended
to fully correct visual acuity or eliminate
refractive error; and
``(II) the term `low-vision devices' means
devices that magnify, enhance, or otherwise
augment a visual image.''.
(b) Conforming Amendment.--The Americans with Disabilities Act of
1990 (42 U.S.C. 12101 et seq.) is further amended by adding after
section 3 the following:
``SEC. 4. ADDITIONAL DEFINITIONS.
``As used in this Act:
``(1) Auxiliary aids and services.--The term `auxiliary
aids and services' includes--
``(A) qualified interpreters or other effective
methods of making aurally delivered materials available
to individuals with hearing impairments;
``(B) qualified readers, taped texts, or other
effective methods of making visually delivered
materials available to individuals with visual
impairments;
``(C) acquisition or modification of equipment or
devices; and
``(D) other similar services and actions.
``(2) State.--The term `State' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the Virgin Islands, the Trust
Territory of the Pacific Islands, and the Commonwealth of the
Northern Mariana Islands.''.
(c) Amendment to the Table of Contents.--The table of contents
contained in section 1(b) of the Americans with Disabilities Act of
1990 is amended by striking the item relating to section 3 and
inserting the following items:
``Sec. 3. Definition of disability.
``Sec. 4. Additional definitions.''.
SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.
(a) On the Basis of Disability.--Section 102 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12112) is amended--
(1) in subsection (a), by striking ``with a disability
because of the disability of such individual'' and inserting
``on the basis of disability''; and
(2) in subsection (b) in the matter preceding paragraph
(1), by striking ``discriminate'' and inserting ``discriminate
against a qualified individual on the basis of disability''.
(b) Qualification Standards and Tests Related to Uncorrected
Vision.--Section 103 of the Americans with Disabilities Act of 1990 (42
U.S.C. 12113) is amended by redesignating subsections (c) and (d) as
subsections (d) and (e), respectively, and inserting after subsection
(b) the following new subsection:
``(c) Qualification Standards and Tests Related to Uncorrected
Vision.--Notwithstanding section 3(5)(D)(ii), a covered entity shall
not use qualification standards, employment tests, or other selection
criteria based on an individual's uncorrected vision unless the
standard, test, or other selection criteria, as used by the covered
entity, is shown to be job-related for the position in question and
consistent with business necessity.''.
(c) Conforming Amendment.--Section 101(8) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111(8)) is amended--
(1) in the paragraph heading, by striking ``with a
disability''; and
(2) by striking ``with a disability'' after ``individual''
both places it appears.
SEC. 6. RULES OF CONSTRUCTION.
Title V of the Americans with Disabilities Act of 1990 (42 U.S.C.
12201) is amended--
(1) by adding at the end of section 501 the following:
``(e) Benefits Under State Worker's Compensation Laws.--Nothing in
this Act alters the standards for determining eligibility for benefits
under State worker's compensation laws or under State and Federal
disability benefit programs.
``(f) Claims of No Disability.--Nothing in this Act shall provide
the basis for a claim by a person without a disability that he or she
was subject to discrimination because of his or her lack of disability.
``(g) Reasonable Accommodations and Modifications.--A covered
entity under title I, a public entity under title II, and any person
who owns, leases (or leases to), or operates a place of public
accommodation under title III, need not provide a reasonable
accommodation or a reasonable modification to policies, practices, or
procedures to an individual who meets the definition of disability in
section 3(1) solely under subparagraph (C).'';
(2) by redesignating section 506 through 514 as sections
507 through 515, respectively, and adding after section 505 the
following:
``SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.
``The authority to issue regulations granted to the Equal
Employment Opportunity Commission, the Attorney General, and the
Secretary of Transportation under this Act includes the authority to
issue regulations implementing the definitions contained in sections 3
and 4.''; and
(3) in the table of contents contained in section 1(b), by
redesignating the items relating to sections 506 through 514 as
sections 507 through 515, respectively, and by inserting after
the item relating to section 505 the following new item:
``Sec. 506. Rule of construction regarding regulatory authority.''.
SEC. 7. CONFORMING AMENDMENTS.
Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) is
amended--
(1) in paragraph (9)(B), by striking ``a physical'' and all
that follows through ``major life activities'', and inserting
``the meaning given it in section 3 of the Americans with
Disabilities Act of 1990''; and
(2) in paragraph (20)(B), by striking ``any person who''
and all that follows through the period at the end, and
inserting ``any person who has a disability as defined in
section 3 of the Americans with Disabilities Act of 1990.''.
SEC. 8. EFFECTIVE DATE.
This Act and the amendments made by this Act shall become effective
on January 1, 2009.
Purpose and Summary
H.R. 3195, the ``ADA Amendments Act of 2008,'' amends the
definition of ``disability'' in the Americans with Disabilities
Act of 1990 (``ADA''), Pub. L. No.101-336 (1990), 42 U.S.C.
Sec. Sec. 12101-12213, and provides related rules of
construction for applying the amended definition. The purpose
of the bill is to restore protection for the broad range of
individuals with disabilities as originally envisioned by
Congress by responding to the Supreme Court's narrow
interpretation of the definition of disability. Through its
decisions, the Supreme Court has set a restrictive standard for
qualifying as disabled within the meaning of the ADA, which has
prevented individuals that Congress unquestionably intended to
cover from ever getting a chance to prove their case. H.R. 3195
restores Congressional intent by prohibiting consideration of
mitigating measures that help control or lessen the impact of
an impairment when determining the threshold question of
whether an impairment is sufficiently limiting to qualify as a
disability. It also reduces the burden of establishing that an
impairment qualifies as a disability by defining terms in the
definition that have proven most troubling for the courts. H.R.
3195 requires a broad construction of the definition of
disability and clarifies agency authority to promulgate
regulations.
Background and Need for the Legislation
The ADA was intended ``to provide a clear and comprehensive
national mandate,'' with ``clear, strong, consistent,
enforceable standards,'' for eliminating disability-based
discrimination.\1\ Through this broad mandate, Congress sought
to protect anyone who is treated less favorably because of a
current, past, or perceived disability.\2\ Congress did not
intend for the threshold question of disability to be used as a
means of excluding individuals from coverage.\3\ Nevertheless,
as the courts began interpreting and applying the definition of
disability strictly, individuals have been excluded from the
protections that the ADA affords because they are unable to
meet the demanding judicially imposed standard for qualifying
as disabled. Legislative action is a necessary step toward
restoring protection for the broad range of individuals with
disabilities, as originally intended by Congress.
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\1\42 U.S.C. Sec. 12101(b)(1), (2) (2007).
\2\42 U.S.C. Sec. 12102(2) (setting forth a three-prong definition
that covers current, past, or perceived disabilities).
\3\See Steny H. Hoyer, Not Exactly What We Intended Justice
O'Connor, Wash. Post., Jan. 20, 2002, at B01.
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CONGRESS MODELED THE ADA'S THREE-PRONG DEFINITION OF
``DISABILITY'' ON THE BROAD DEFINITION OF ``HANDICAP'' IN THE
REHABILITATION ACT OF 1973.
The ADA defines the term ``disability'' as, with respect to
an individual--
(A)
La physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
(B)
La record of such an impairment; or
(C)
Lbeing regarded as having such an impairment.\4\
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\4\42 U.S.C. Sec. 12102(2) (2007). This definition applies to the
entire Act.
As with other civil rights laws, individuals seeking
protection under the ADA must first allege and prove that they
are members of the protected class--i.e., show that they have a
``disability'' as defined in the Act. Under the ADA, an
individual qualifies as a member of the protected class if he
or she comes within at least one of the three prongs of the
ADA's definition. Thus, the individual must: (1) have an
actual, substantially limiting impairment; (2) have a record of
a substantially limiting impairment; or (3) be regarded as
having a substantially limiting impairment, whether the
individual has such an impairment or not. An individual who
does not qualify as disabled under at least one of these three
prongs does not meet this threshold question of coverage in the
protected class and is therefore not permitted to attempt to
prove his or her claim of discriminatory treatment. There is no
consideration of whether the individual is qualified for a job
or to participate in a service or program, and no consideration
of whether unlawful discrimination occurred.
Congress modeled the ADA definition of disability on the
definition of ``handicapped individual'' contained in the
Rehabilitation Act of 1973, 29 U.S.C. Sec. 790 et seq.,\5\
which the courts had interpreted broadly to include persons
with a wide range of physical and mental impairments such as
epilepsy, diabetes, multiple sclerosis, and intellectual and
developmental disabilities.\6\ These impairments were
recognized as disabilities even where a mitigating measure--
like medication or a hearing aid--might lessen their impact on
the individual.\7\ In most cases, defendants and the courts
accepted that a plaintiff was a member of the protected class
(i.e., a ``handicapped individual'') and moved on to the merits
of the case. The courts would then examine, for example,
whether the plaintiff had shown that the adverse action was
undertaken because of disability, whether the plaintiff was
qualified to perform the job, or whether a requested
accommodation might cause an undue burden.
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\5\The Rehabilitation Act definition is now codified at 29 U.S.C.
Sec. 705(20) (2007). In 1992, the term ``disability'' replaced
``handicap'' in the Rehabilitation Act. See Pub. L. No. 102-569,
Sec. 102, 106 Stat. 4344, 4355-56 (1992).
\6\See, e.g., Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987)
(epilepsy); Bolthouse v. Cont'l Wingate Co., 656 F.Supp. 620, 625-26
(W.D. Mich. 1987) (cerebral palsy); Strathie v. Dep't of Transp., 716
F.2d 227, 230 (3rd Cir. 1983) (hearing impairment); Flowers v. Webb,
575 F.Supp. 1450, 1456 (E.D.N.Y. 1983) (``mental retardation'');
Bentivegna v. United States Dep't of Labor, 694 F.2d 619, 621 (9th Cir.
1982) (diabetes); Bey v. Bolger, 540 F.Supp. 910, 927 (E.D. Pa. 1982)
(heart disease); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372,
1377, 1387 (10th Cir. 1981) (multiple sclerosis); Kampmeier v. Nyquist,
533 F.2d 296, 299 n.7 (2nd Cir. 1977) (vision in only one eye).
\7\See, e.g., Reynolds, 815 F.2d at 574 (individual with epilepsy
had a cognizable handicap under the Rehabilitation Act ``even though
medication controls her seizures . . .''); see also Strathie, 716 F.2d
at 228-29 (undisputed that individual with hearing impairment was
handicapped under the Rehabilitation Act even though hearing was
corrected by use of a hearing aid); Bentivegna, 694 F.2d at 621-22
(accepting, without discussion, that individual with insulin-dependent
diabetes was handicapped under the Rehabilitation Act).
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In addition to favorable treatment by the lower courts, the
Supreme Court also had endorsed a broad interpretation of the
definition of ``handicapped individual'' before Congress
decided to adopt this model for the definition of
``disability'' in the ADA. In School Bd. of Nassau County v.
Arline,\8\ the Supreme Court found that a school teacher who
was fired after suffering relapses of tuberculosis had a
handicap under the second and third prongs of the definition.
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\8\480 U.S. 273, 285 (1978).
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In so ruling, the Supreme Court acknowledged that ``the
definition of `handicapped individual' is broad, but only those
individuals who are both handicapped and otherwise qualified
are eligible for relief.''\9\ Thus, the definition was
structured to cover more--rather than fewer--individuals, who
then have the opportunity--but also the burden--to prove
unlawful discrimination. As the Court recognized in Arline,
clearing the initial threshold is critical, as individuals who
are excluded from the definition ``never have the opportunity
to have their condition evaluated in light of medical evidence
and a determination made as to whether they [are] `otherwise
qualified.'''\10\ Because of this, it was the Court's view that
a broad definition appropriately ensured that individuals were
not left ``vulnerable to discrimination on the basis of
mythology--precisely the type of injury Congress sought to
prevent.''\11\
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\9\Id. (original emphasis).
\10\Id.
\11\Id.
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In enacting the ADA, Congress issued extensive reports
expressing its intent and expectation that the definition it
adopted from the Rehabilitation Act would continue to be
interpreted broadly.\12\ Explaining the first prong of the
definition, Congress made it clear that mitigating measures
should not be considered:
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\12\H.R. Rep. No. 101-485, pt. 2, at 50 (1990) (expressing intent
to incorporate the definition used in Rehabilitation Act of 1973, and
endorsing Federal agency analysis of that definition); id., pt. 3, at
27 (same).
Whether a person has a disability should be assessed
without regard to the availability of mitigating
measures, such as reasonable accommodations or
auxiliary aids. 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 first prong of the definition of
disability, even if the effects of the impairment are
controlled by medication.\13\
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\13\H.R. Rep. No. 101-485, pt. 2, at 52; id., pt. 3, at 28 (``The
impairment should be assessed without considering whether mitigating
measures, such as auxiliary aids or reasonable accommodations, would
result in a less-than-substantial limitation.''); see also S. Rep. No.
101-116, at 23 (1989).
Congress included the second prong to protect individuals
who have recovered from impairments that substantially limited
them in the past, as well as individuals who have been
incorrectly classified as having such impairments. ``Examples
include a person who had, but no longer has, cancer, or a
person who was misclassified as being mentally retarded.''\14\
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\14\H.R. Rep. No. 101-485, pt. 3, at 29; id., pt. 2, at 52-3
(``Frequently occurring examples of the first group (i.e., those who
have a history of an impairment) are persons with histories of mental
or emotional illness, heart disease, or cancer; examples of the second
group (i.e., those who have been misclassified as having an impairment)
are persons who have been misclassified as mentally retarded.'').
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With the third prong, Congress sought to cover individuals
who are treated as disabled whether or not they actually are.
Congress expressed its intent to adopt the rationale
articulated by the Supreme Court in Arline that ``although an
individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of
others may prove just as disabling. `Such an impairment might
not diminish a person's physical or mental capabilities, but
could nevertheless substantially limit that person's ability to
work as a result of the negative reactions of others to the
impairment.'''\15\
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\15\Id., pt. 3, at 30 (citing Arline, 480 U.S. at 283).
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COURT RULINGS HAVE NARROWED ADA PROTECTION, RESULTING IN THE EXCLUSION
OF INDIVIDUALS THAT CONGRESS CLEARLY INTENDED TO PROTECT.
Through a series of decisions interpreting the ADA's
definition of ``disability,'' the Supreme Court has narrowed
the ADA in ways never intended by Congress. First, in three
cases decided on the same day in 1999, the Supreme Court ruled
that the determination of ``disability'' under the first prong
of the definition--i.e., whether an individual has a
substantially limiting impairment--should be made after
considering whether mitigating measures had reduced the impact
of the impairment.\16\ In all three cases, the undisputed
reason for the adverse action was the employee's medical
condition, yet all three employers argued--and the Supreme
Court held--that the plaintiffs were not protected by the ADA
because their impairments, when considered in a mitigated
state, were not limiting enough to qualify as disabilities
under the ADA.\17\
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\16\Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v.
United Parcel Service, Inc., 527 U.S. 516 (1999); Albertson's, Inc. v.
Kirkingburg, 527 U.S. 555 (1999).
\17\Sutton, 527 U.S. at 475, 488 (concluding that the Sutton twins
were not disabled because their vision was correctable to 20/20 or
better through glasses or contact lenses); Murphy, 527 U.S. at 519-21
(concluding that Murphy, who was diagnosed with hypertension at age 10
and whose unmedicated blood pressure is 250/160, was not disabled
because he can engage in most life activities when taking medication);
Albertson's, 527 U.S. at 565-67 (concluding that Kirkinburg, who can
only see out of one eye, might not be disabled because his brain had
compensated for his visual impairment).
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Three years later, the Supreme Court revisited the
definition of ``disability'' in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams.\18\ In that case, the plaintiff
alleged that her employer discriminated against her by failing
to accommodate her disabilities, which included carpal tunnel
syndrome, myotendonitis, and thoracic outlet compression.\19\
While her employer previously had adjusted her job duties,
making it possible for her to perform well despite these
conditions, Williams was not able to resume certain job duties
when requested by Toyota and ultimately lost her job.\20\ She
challenged the termination, also alleging that Toyota's refusal
to continue accommodating her violated the ADA. Looking to the
definition of ``disability,'' the Court noted that an
individual ``must initially prove that he or she has a physical
or mental impairment,'' and then demonstrate that the
impairment ``substantially limits'' a ``major life
activity.''\21\ Identifying the critical questions to be
whether a limitation is ``substantial'' and whether a life
activity is ``major,'' the Court stated that ``these terms need
to be interpreted strictly to create a demanding standard for
qualifying as disabled.''\22\ The Court then concluded that
``substantial'' requires a showing that an individual has an
impairment that ``prevents or severely restricts'' the
individual; and ``major'' life activities requires a showing
that the individual is restricted from performing tasks that
are ``of central importance to most people's daily lives.''\23\
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\18\534 U.S. 182 (2002).
\19\Id. at 189, 196 (myotendinitis is an inflammation of the
muscles and tendons; thoracic outlet compression is a condition that
causes pain in the nerves leading to the upper extremities).
\20\Id. at 188-90.
\21\Id. at 194-95.
\22\Id. at 197.
\23\Id. at 198. Finding that the changes to Williams's life caused
by her impairments ``did not amount to such severe restrictions in the
activities that are of central importance to most people's daily lives
that they establish a manual task disability as a matter of law,'' the
Court reversed the Sixth Circuit's grant of summary judgment in
Williams's favor and remanded the case for further consideration. Id.
at 202, 203.
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While these cases involved claims brought under Title I of
the ADA, the definition of disability applies to the entire Act
and the Court's analysis has proven equally problematic for
individuals seeking protection under its other titles.\24\
Thus, in the wake of these rulings, individuals with
disabilities that had been covered under the Rehabilitation Act
and that Congress intended to include under the ADA--people
with serious health conditions like epilepsy, diabetes, cancer,
cerebral palsy, multiple sclerosis, intellectual and
developmental disabilities--have been excluded from
protection.\25\ The courts say either that the person is not
impaired enough to substantially limit a major life activity,
or that the impairment substantially limits something--like
liver function\26\--that they do not consider a major life
activity.
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\24\See, e.g., Bartlett v. New York State Bd. of Law Exam'rs., 226
F.3d 69 (2nd Cir. 2000) (reconsidering whether individual bringing
claims under Titles II and III of the ADA met the definition of
``disability'' following the Supreme Court's remand for reconsideration
in light of its rulings in Sutton, Murphy, and Albertson's); Gonzales
v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620 (6th Cir. 2000) (applying
Supreme Court rulings in determining whether an individual bringing a
claim under Title III of the ADA is disabled).
\25\See, e.g., Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir.
2002) (individual with diabetes, managed through insulin and diet, not
disabled enough to be protected by the ADA); Todd v. Academy Corp., 57
F.Supp. 2d 448 (S.D. Tex. 1999) (individual with epilepsy who was able
to reduce the duration and intensity of his seizures through medication
is not disabled enough to claim protection under the ADA as his weekly
seizures amount only to ``momentary physical limitations which could
not be classified as substantial''); Eckhaus v. Consolidated Rail
Corp., No. Civ. 00-5748, 2003 WL 23205042 (D.N.J. Dec. 24, 2003)
(individual fired because of a hearing impairment was not protected by
the ADA because a hearing aid helped correct that impairment); McMullin
v. Ashcroft, 337 F.Supp. 2d 1281 (D.Wyo. 2004) (individual fired
because of clinical depression not protected by the ADA because of the
successful management of the condition with medication for the past
fifteen years).
\26\See, e.g., Furnish v. SVI Sys., Inc., 270 F.3d 445, 450 (7th
Cir. 2001) (employee with cirrhosis of the liver caused by Hepatitis B
is not disabled because liver function--unlike eating, working, or
reproducing--``is not integral to one's daily existence'').
---------------------------------------------------------------------------
A hearing held on October 4, 2007 before the Committee's
Subcommittee on Constitution, Civil Rights, and Civil Liberties
provided an opportunity for the Constitution Subcommittee to
examine how the Supreme Court's decisions regarding the
definition of disability have affected ADA protection for
individuals with disabilities and to consider the need for
legislative action. Majority Leader Steny H. Hoyer (D-MD), one
of the lead sponsors of the ADA in 1990, and lead House co-
sponsor along with Representative James F. Sensenbrenner, Jr.
(R-WI) of the ADA Restoration Act of 2007, explained the need
to respond to court decisions ``that have sharply restricted
the class of people who can invoke protection under the law and
[reinstate] the original congressional intent when the ADA
passed.''\27\ Explaining Congress's choice to adopt the
definition of ``disability'' from the Rehabilitation Act
because it had been interpreted generously by the courts,
Majority Leader Hoyer testified that Congress had never
anticipated or intended that the courts would interpret that
definition so restrictively:
---------------------------------------------------------------------------
\27\ADA Restoration Act of 2007: Hearing on H.R. 3195 Before the
Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the
H. Comm. on the Judiciary, 110th Cong., tr. at 17 (2007) (oral
statement of Majority Leader Hoyer).
[W]e could not have fathomed that people with diabetes,
epilepsy, heart conditions, cancer, mental illnesses
and other disabilities would have their ADA claims
denied because they would be considered too functional
to meet the definition of disabled. Nor could we have
fathomed a situation where the individual may be
considered too disabled by an employer to get a job,
but not disabled enough by the courts to be protected
by the ADA from discrimination. What a contradictory
position that would have been for Congress to take.\28\
---------------------------------------------------------------------------
\28\Id. at 18.
Cheryl Sensenbrenner, Chair of the American Association of
People with Disabilities, and wife of Representative
Sensenbrenner, made a similar point. She noted the absurdity of
penalizing individuals who make efforts to manage their medical
---------------------------------------------------------------------------
conditions:
A multitude of people who manage their disabilities
effectively through medication, prosthetics, hearing
aids, or other ``mitigating measures'' are viewed as
``too functional''--or not ``disabled enough''--to be
protected under the ADA\29\
---------------------------------------------------------------------------
\29\Id. at 25 (prepared statement of Cheryl Sensenbrenner).
---------------------------------------------------------------------------
* * *
It seems to me that the last message we would want to
send to Americans with disabilities--particularly youth
with disabilities and returning war veterans--is the
less you manage your disability, the less you try, the
more likely you are to be protected under civil rights
laws.\30\
---------------------------------------------------------------------------
\30\Id. at 26 (prepared statement of Cheryl Sensenbrenner).
A pharmacist, Stephen Orr, testified that, after being
fired because of his diabetes, the courts ruled that he was not
protected by the ADA because he had managed his condition
through use of an insulin pump, exercise, and strict diet and,
therefore, was not substantially limited in any major life
activity.\31\ Majority Leader Hoyer, joined by all of the
witnesses except the representative on behalf of the U.S.
Chamber of Commerce, urged Congress to respond to these
restrictive rulings by passing H.R. 3195 to amend the
definition of disability. The representative for the Chamber of
Commerce opposed H.R. 3195, as introduced, as an overly broad
response to the Supreme Court's decisions.\32\
---------------------------------------------------------------------------
\31\Id. at 27 (oral statement of Stephen C. Orr).
\32\Id. at 50 (oral statement of Lawrence Z. Lorber).
---------------------------------------------------------------------------
Hearings
The Committee's Subcommittee on Constitution, Civil Rights,
and Civil Liberties held 1 day of hearings on H.R. 3195 on
October 4, 2007. Testimony was received from Majority Leader
Steny H. Hoyer (D-MD); Cheryl Sensenbrenner, Chair, American
Association of People with Disabilities; Stephen C. Orr,
plaintiff in Orr. v. Wal-Mart; Michael C. Collins, Executive
Director, National Council on Disability; Lawrence Z. Lorber,
U.S. Chamber of Commerce; Chai R. Feldblum, Professor,
Georgetown University Law Center. Additional material was
submitted by Charles Littleton and Darbara Littleton; Robert L.
Burgdorf, Jr., Professor, David A. Clarke School of Law; David
Ferleger, Esq; National Council on Independent Living (NCIL);
Disability Policy Collaboration, A Partnership of The Arc &
United Cerebral Palsy; American Psychological Association;
Paralyzed Veterans of America, Blinded Veterans Association,
Disabled American Veterans, Jewish War Veterans of the USA,
Veterans of Foreign Wars of the United States, Vietnam Veterans
of America.
Committee Consideration
On June 18, 2008, the Committee met in open session and
ordered the bill H.R. 3195 favorably reported with an
amendment, by a rollcall vote of 27 to 0, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H.R. 3195: motion to report H.R. 3195, as
amended, favorably. Passed 27 to 0.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Sanchez.....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Ms. Sutton...................................................... X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Davis.......................................................
Ms. Wasserman Schultz........................................... X
Mr. Ellison..................................................... X
Mr. Smith (Texas)............................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren.....................................................
Mr. Cannon...................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
-----------------------------------------------
Total....................................................... 27 0
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3195, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 23, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3195, the ADA
Amendments Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 3195--ADA Amendments Act of 2008.
SUMMARY
H.R. 3195 would make several amendments to the Americans
with Disabilities Act (ADA) of 1990 (Public Law 101-336). The
bill would amend the definition of disability and clarify the
prohibition on discrimination on the basis of disability.
Assuming appropriation of the necessary amounts, CBO estimates
that implementing H.R. 3195 would cost about $25 million over
the 2009-2013 period for the Equal Employment Opportunity
Commission (EEOC) to handle additional discrimination cases.
Enacting H.R. 3195 would not affect direct spending or
revenues.
Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from the application of that act any legislative
provision that establishes or enforces statutory rights that
prohibit discrimination on the basis of disability. CBO has
determined that sections 3 through 6 of H.R. 3195 fall within
that exclusion; therefore, we have not reviewed them for
intergovernmental or private-sector mandates. The remaining
provisions of H.R. 3195 contain no intergovernmental or
private-sector mandates as defined in UMRA and would impose no
costs on State, local, or tribal governments, or the private
sector.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 3195 is shown in the
following table. The costs of this legislation fall within
budget function 750 (administration of justice).
By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level 3 5 5 6 6 25
Estimated Outlays 3 5 5 6 6 25
----------------------------------------------------------------------------------------------------------------
BASIS OF ESTIMATE
CBO estimates that implementing H.R. 3195 would cost about
$25 million over the 2009-2013 period, assuming appropriation
of the necessary amounts. For this estimate, CBO assumes that
the necessary amounts will be appropriated near the start of
each fiscal year and that outlays will follow the historical
spending pattern of those activities. The bill would not affect
direct spending or revenues.
The EEOC's current caseload for ADA actions is about 20,000
annually. CBO expects that H.R. 3195 would increase this
workload by no more than 10 percent in most years, or roughly
2,000 cases annually. Based on EEOC staffing levels necessary
to handle the agency's current caseload, we expect that
implementing H.R. 3195 would require 50 to 60 additional
employees. CBO estimates that the costs to hire those new
employees would reach $5 million by fiscal year 2010, subject
to appropriation of the necessary amounts. In 2008, the agency
received an appropriation of $329 million.
The additional cases resulting from H.R. 3195 also could
increase the workload of the Department of Justice and the
federal judiciary. However, CBO estimates that increased costs
for those agencies would not be significant because of the
relatively small number of cases likely to be referred to them.
ESTIMATED INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
Section 4 of UMRA excludes from the application of that act
any legislative provision that establishes or enforces
statutory rights that prohibit discrimination on the basis of
disability. CBO has determined that sections 3 through 6 of
H.R. 3195 fall within that exclusion; therefore, we have not
reviewed them for intergovernmental or private-sector mandates.
The remaining provisions of H.R. 3195 contain no
intergovernmental or private-sector mandates as defined in UMRA
and would impose no costs on State, local, or tribal
governments, or the private sector.
PREVIOUS CBO ESTIMATE
On June 23, 2008, CBO transmitted a cost estimate for H.R.
3195 as ordered reported by the House Committee on Education
and Labor on June 18, 2008. The two versions of the bill are
identical as are the cost estimates.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)
ESTIMATE APPROVED BY:
Theresa Gullo
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3195 amends the definition of ``disability'' in the Americans
with Disabilities Act of 1990 (``ADA''), and provides related
rules of construction for applying the amended definition in
order to restore broad protection for the wide range of
individuals with disabilities as originally intended by
Congress.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clauses 3 and 18 of
the Constitution and Amendment XIV, section 5.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3195 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 3195 amends the
definition of ``disability'' in the Americans with Disabilities
Act and provides related rules of construction for applying the
amended definition in order to clarify that the definition
shall be construed broadly, which includes coverage under
Section 509, 42 U.S.C Sec. 12209, and through the Congressional
Acountability Act, 42 U.S.C. Sec. Sec. 1311, 1331, for the
United States Senate and House of Representatives.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ADA Amendments Act of 2008.
Sec. 2. Findings and Purposes. Section 2 explains
Congress's original intent and expectation that the definition
of disability contained in the ADA would provide coverage for a
broad range of individuals, consistent with how that definition
had been interpreted by the courts under the Rehabilitation Act
of 1973. Section 2 further explains that certain Supreme Court
rulings have narrowed that definition in ways not expected or
intended by Congress. Section 2 finds that, as a result of the
Supreme Court's rulings in Sutton v. United Airlines, Inc.,\33\
Murphy v. United Parcel Service, Inc.,\34\ Albertson's, Inc. v.
Kirkinburg,\35\ and Toyota Motor Manufacturing, Kentucky, Inc.
v. Williams,\36\ courts incorrectly have excluded individuals
with qualifying disabilities from the ADA's protection. The
purposes of the bill are to reinstate a broad scope of
protection under the ADA by superseding aspects of these
Supreme Court rulings and providing new definitions and
standards regarding the definition of disability.
---------------------------------------------------------------------------
\33\527 U.S. 471 (1999).
\34\527 U.S. 516 (1999).
\35\527 U.S. 555 (1999).
\36\534 U.S. 184 (2002).
---------------------------------------------------------------------------
Sec. 3. Codified Findings. Section 3 modifies two findings
in the ADA that have been used by the Supreme Court to support
a narrow reading of ``disability.'' Specifically, the bill
strikes the ADA finding pertaining to ``43 million
Americans,''\37\ and the ADA finding pertaining to ``discrete
and insular minority.''\38\ The Supreme Court relied upon both
of these findings in determining that the ADA's definition of
disability should be interpreted strictly, rather than broadly
as Congress had intended.\39\ Striking these findings is
necessary because both have been interpreted in a manner that
is inconsistent with the intent to protect the broad range and
class of individuals with disabilities. The modified finding in
paragraph (1) of the ADA is consistent with Congress's prior
finding that individuals with disabilities have been subject to
a history of purposeful unequal treatment, and relegated to a
position of political powerlessness in our society, based on
characteristics that are beyond the control of such individuals
and resulting from stereotypic assumptions not truly indicative
of the ability of any such individuals to participate in, and
contribute to, society.
---------------------------------------------------------------------------
\37\42 U.S.C. Sec. 12101(a)(1).
\38\42 U.S.C. Sec. 12101(a)(7).
\39\See Sutton, 527 U.S. at 484, 494-5; Williams, 534 U.S. at 197.
---------------------------------------------------------------------------
Sec. 4. Disability Defined and Rules of Construction.
Section 4 amends the definition of ``disability'' in Section
3(2) of the ADA,\40\ and provides standards for applying the
amended definition. Section 4 retains the essential structure
of the three-prong definition of disability, which protects
individuals with current, past, or perceived disabilities.
While retaining this structure, the Act amends some of the
terms of the definition that have been construed strictly by
the courts (``substantially limits,'' ``major life
activities,'' and ``regarded as having such an impairment'')
and lessens the burden of proving that one has a disability for
purposes of coverage under the ADA. Section 4 also provides
several rules of construction for the definition, providing
standards that must be applied when considering the definition
of disability.
---------------------------------------------------------------------------
\40\42 U.S.C. Sec. 12102(2).
---------------------------------------------------------------------------
Section 4(a) of the bill amends Section 3(2) of the
ADA.\41\ Section 4(a) retains the requirement that a physical
or mental impairment ``substantially limits'' a major life
activity under the first and second of the ADA's three-prong
definition, but defines ``substantially limits'' as
``materially restricts'' in order to reject the Supreme Court's
ruling in Williams,\42\ which set an overly demanding standard.
The new definition--``materially restricts''--adopts a less
demanding standard. While the limitation imposed by an
impairment must be important, it need not rise to the level of
severely or significantly restricting the performance of a
major life activity in order to qualify as a disability. On the
severity spectrum, ``materially restricts'' is meant to be less
than ``severely restricts,'' and less than ``significantly
restricts,'' but more serious than a moderate impairment which
would be in the middle of the spectrum. This standard is
intended to return the courts to the standard used under the
Rehabilitation Act prior to adoption of the definition into the
ADA and that also had been employed by some of the lower courts
in deciding cases under the ADA before the Supreme Court's
restrictive ruling in Williams.\43\
---------------------------------------------------------------------------
\41\42 U.S.C. Sec. 12102(2).
\42\534 U.S. 196-97.
\43\534 U.S. 196-97. See, e.g., Bartlett v. New York State Bd. of
Law Examiners, 226 F.3d 69, 80-81 (2nd Cir. 2000) (explaining the
standard for determining ``substantial limitation'' after remand by the
Supreme Court for further consideration in light of its determination
in Sutton, Murphy, and Albertson's requiring the consideration of
mitigating measures but before its restrictive interpretation of the
terms of the definition in Williams).
---------------------------------------------------------------------------
Section 4 of the Act further amends the ADA definition of
disability by providing an illustrative list of ``major life
activities'' to exemplify the types of activities that are of
central importance to most people's daily lives. The
illustrative list of ``major life activities'' includes many
common daily activities like eating, sleeping, walking, and
thinking and clarifies that ``major bodily functions'' also
should be considered major life activities under the ADA. This
clarification was needed to ensure that the impact of an
impairment on the operation of major bodily functions is not
overlooked or wrongly dismissed as falling outside the
definition of ``major life activities'' under the ADA. Thus,
following this clarifying amendment, individuals in cases like
U.S. v. Happy Time Day Care Ctr.\44\ or Furnish v. SVI Sys.,
Inc.\45\ could establish a material restriction on major bodily
functions that would qualify them for protection under the ADA.
An impairment can materially restrict the operation of a major
bodily function if it causes the operation to over-produce or
under-produce in some harmful fashion. Since it would be
impossible to guarantee comprehensiveness in finite lists, the
examples of major life activities and major bodily functions
are illustrative and non-exhaustive. The absence of an activity
or bodily function from these lists does not convey a negative
implication as to whether it constitutes a major life activity
under the ADA.
---------------------------------------------------------------------------
\44\6 F.Supp. 2d 1073 (W.D. Wis. 1998) (struggling to analyze
whether the impact of HIV infection substantially limits various major
life activities of a 5-year-old child, and recognizing, among other
things, that ``there is something inherently illogical about inquiring
whether'' a 5-year-old's ability to procreate is substantially limited
by his HIV infection)
\45\270 F.3d 445, 450 (7th Cir. 2001) (finding that individual with
cirrhosis of the liver caused by Hepatitis B is not disabled because
liver function--unlike eating, working, or reproducing--``is not
integral to one's daily existence'')
---------------------------------------------------------------------------
In addition to these definitions of ``substantially
limits'' and ``major life activities,'' Section 4 also
clarifies the meaning of the phrase ``regarded as having such
an impairment'' in the third prong of the ADA's definition of
disability. While retaining the basic language contained in
existing law, Section 4 makes clear that an individual meets
the requirement of ``being regarded as having such an
impairment'' if the individual shows that a prohibited action
was taken based on an actual or perceived impairment, whether
or not that impairment limits or is perceived to limit a major
life activity. This makes it clear that an individual who is
``regarded as'' having an impairment need not meet the
functional limitation, or severity, requirement contained in
the first and second prongs of the definition (i.e., the
individual is not required to show that the perceived
impairment limits performance of a major life activity).
This clarification is necessary because the third prong
incorporates the ``substantial limitation'' requirement from
the first prong by reference (i.e., prong three protects only
those individuals who are ``regarded as having such an
impairment''). While the plain language used by Congress when
it passed the ADA in 1990 incorporates this requirement,
Congress did not expect or intend that this would be a
difficult standard to meet. On the contrary, when Congress
passed the ADA, it intended and believed that the fact that an
individual was discriminated against because of a perceived or
actual impairment would be sufficient. As the House Committee
on the Judiciary explained: ``if a person is disqualified on
the basis of an actual or perceived physical or mental
condition, and the employer can articulate no legitimate job-
related reason for the rejection, a perceived concern about
employment of persons with disabilities could be inferred and
the plaintiff would qualify for coverage under the `regarded
as' test.''\46\
---------------------------------------------------------------------------
\46\H.R. Rep. No. 101-485, pt. 3, at 30-31.
---------------------------------------------------------------------------
This third, ``regarded as,'' prong was meant to express
Congress's understanding that unfounded concerns, mistaken
beliefs, fear, or prejudice about disabilities are just as
disabling as actual impairments and its corresponding desire to
prohibit discrimination founded on such concerns or fears.\47\
Early decisions under the ADA reflected this understanding, as
did guidance from Federal agencies like the Department of
Justice.\48\
---------------------------------------------------------------------------
\47\See, e.g., H.R. Rep. No. 101-485, pt. 3, at 30 (1990) (citing
Arline, 480 U.S. at 284).
\48\See, e.g., U.S. v. Happy Time Day Care Ctr., 6 F.Supp. 2d 1073,
1083-84 (rejecting the argument that a day care center's refusal to
enroll a child with HIV did not establish that they believed that his
HIV infection was substantially limiting, and concluding that the child
was protected under the ``regarded as'' prong because ``defendants''
misapprehensions and fears' about HIV infection were substantially
limiting); see also 28 C.F.R. Pt. 36, App. B, at 612.
---------------------------------------------------------------------------
In line with the Supreme Court's restrictive interpretation
of the first prong of the definition, however, the Court also
has restrictively construed prong three, increasing the burden
of proof required to establish that one has been regarded as
disabled.\49\ These restrictive rulings are at odds with the
Court's earlier recognition in Arline that the negative
reactions of others--exhibited through disqualification from a
single job, program, or service--are as disabling as the actual
impact of an impairment, a conclusion endorsed by Congress when
it adopted the ```regarded as'' prong. Section 4 therefore
restores Congress's original intent by making clear that an
individual meets the requirement of ``being regarded as having
such an impairment'' if the individual shows that a prohibited
action (e.g., disqualification from a job, program, or service)
was taken because of an actual or perceived impairment, whether
or not that impairment actually limits or is believed to limit
a major life activity. Because there is no functional
limitation requirement under prong three of the definition, the
requirement for proving substantial limitation of the major
life activity of working under the first and second prongs is
not applicable to the analysis under prong three, and Equal
Employment Opportunity Commission regulations regarding the
major life activity of working under prongs one and two are not
impacted by this change. The Committee is not intending to
convey that Equal Employment Opportunity Commission regulations
regarding class of jobs/range of jobs under prongs one and two
need to be revisited as a result of the clarification of prong
three.
---------------------------------------------------------------------------
\49\See, e.g., Sutton, 527 U.S. at 491-92 (disqualification from a
single job is insufficient; individuals seeking coverage under prong
three must show that they were perceived as unable to perform a broad
range of jobs utilizing the same skills).
---------------------------------------------------------------------------
Section 4 further clarifies that coverage for individuals
under the ``regarded as'' prong is not available where the
impairment that an individual is regarded as having is a
transitory and minor impairment. Providing such an exception
for claims at the lowest end of the spectrum of severity was
deemed necessary under prong three of the definition because
individuals seeking coverage under this prong need not meet the
functional limitation requirement contained in prongs one and
two of the definition. Therefore, absent this exception, the
third prong of the definition would have covered individuals
who are regarded as having common ailments like the cold or
flu, and this exception responds to concerns raised by members
of the business community regarding potential abuse of this
provision and the misapplication of resources on individuals
with minor ailments that last only a short period of time. A
similar exception is not necessary for prongs one and two as
the functional limitation test adequately prevents claims by
individuals with common ailments that do not materially
restrict a major life activity. However, as an exception to the
general rule for broad coverage under the ``regarded as''
prong, this limitation on coverage should be construed
narrowly.
Section 4 adds several rules of construction that specify
standards that must be applied when interpreting the ADA's
definition of disability. The first such rule responds to the
Supreme Court's strict construction of the terms in the
definition of disability in Williams\50\ and directs courts to
construe the definition of ``disability'' broadly to advance
the ADA's remedial purposes. This brings treatment of the ADA's
definition of disability in line with treatment of other civil
rights laws, which should be construed broadly to effectuate
their remedial purposes.\51\ The next rule of construction for
the definition of disability in section 4 of the Act clarifies
that an impairment need only substantially limit one major life
activity to be considered a disability under the ADA. This
responds to and corrects those court decisions that have
required individuals to show that an impairment substantially
limits more than one life activity or that, with regard to the
major life activity of ``performing manual tasks,'' have offset
substantial limitation in the performance of some tasks with
the ability to perform others.\52\
---------------------------------------------------------------------------
\50\534 U.S. at 197.
\51\Cf. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237
(1969) (refusing to adopt a ``narrow construction'' of the language of
the term ``lease'' in Sec. 1982 as ``quite inconsistent with the broad
and sweeping nature of the protection meant to be afforded'' by the
Civil Rights Act of 1866) and Scheidemantle v. Slippery Rock Univ.
State Sys. of Higher Ed., 470 F.3d 535, 538-39 (3rd Cir. 2006) (``Title
VII is a remedial statute, so it must be interpreted broadly'') with
Williams, 534 U.S. at 197 (the terms in the ADA's definition of
disability ``need to be interpreted strictly to create a demanding
standard for qualifying as disabled. . . .'').
\52\See, e.g., Holt v. Grand Lake Mental Health Center, Inc., 443
F.3d 762 (10th Cir. 2006) (finding that an individual whose cerebral
palsy adversely affected her speech and ability to perform various
tasks, including eating and chewing food and buttoning her clothing,
was not substantially limited because of her ability to perform other
manual tasks).
---------------------------------------------------------------------------
The third rule of construction related to the definition of
disability contained in section 4 of the bill provides that an
impairment that is episodic or in remission must be considered
a disability if that impairment would be substantially limiting
in its active state. Thus, for example, an individual with
epilepsy who experiences seizures that result in the short-term
loss of control over major life activities, including major
bodily functions (e.g., uncontrollable shaking, loss of
consciousness) or other major life activities (e.g., ability to
communicate, walk, stand, think) is disabled under the ADA even
if those seizures occur daily, weekly, monthly, or rarely. This
third rule of construction thus rejects the reasoning of the
courts in cases like Todd v. Academy Corp.\53\ where the court
found that the plaintiff's epilepsy, which resulted in short
seizures during which the plaintiff was unable to speak and
experienced tremors, was not sufficiently limiting, at least in
part because those seizures occurred episodically. It similarly
rejects the results reached in cases where the courts have
discounted the impact of an impairment that may be in remission
as too short-lived to be substantially limiting.\54\ It is thus
expected that individuals with impairments that are episodic or
in remission (e.g., epilepsy, multiple sclerosis, cancer) will
be able to establish coverage if, when active, the impairment
or the manner in which it manifests (e.g., seizures)
substantially limits a major life activity.
---------------------------------------------------------------------------
\53\57 F.Supp. 448, 453 (S.D. Tex. 1999).
\54\See, e.g., Pimental v. Dartmouth-Hitchock Clinic, 236 F.Supp.
2d 177, 182-83 (D.N.H. 2002) (discounting the ``terrible effect the
cancer had'' upon plaintiff as too ``short-lived'' to constitute a
disability despite fact that plaintiff's cancer required a modified
radical mastectomy, radiation treatment, and chemotherapy that resulted
in early menopause and impaired her concentration, ability to sleep,
and memory, among other things). The Committee also expects that
plaintiffs with conditions like cancer might also qualify for coverage
by establishing a material restriction on major bodily functions.
---------------------------------------------------------------------------
The fourth rule of construction related to the definition
of disability contained in section 4 of the bill prohibits
consideration of the ameliorative effects of mitigating
measures when determining whether an individual's impairment
substantially limits major life activities. This restores
Congress's original intent and overturns the Supreme Court's
determination that the effect of mitigating measures must be
considered. Section 4 provides an illustrative list of measures
whose use might mitigate the impact of an impairment.
Mitigating measures include medicine, equipment, hearing aids,
and adaptive or learned behaviors undertaken by the body (e.g.,
neurological adjustments made by individuals to cope with
visual impairments, as was the case in Albertson's, where the
court required consideration of the ``body's own systems'' as a
mitigating measure).\55\ Mitigating measures include low vision
devices, which are devices that magnify, enhance, or otherwise
augment a visual image, such as magnifiers, closed circuit
television, larger-print items, and instruments that provide
voice instructions. Low vision devices do not include ordinary
eyeglasses or contact lenses, which are lenses that are
intended to fully correct visual acuity or eliminate refractive
error. A narrow exception exists for ordinary eyeglasses or
contact lenses, requiring consideration of the ameliorative
effects of these two mitigating measures in determining whether
an impairment substantially limits a major life activity.
---------------------------------------------------------------------------
\55\Albertson's, 527 U.S. at 565-66.
---------------------------------------------------------------------------
As it would be impossible to guarantee comprehensiveness in
a finite list, the list of mitigating measures is non-
exhaustive and the absence of a mitigating measure from the
list is not intended to convey a negative implication as to
whether that measure is a mitigating measure under the ADA. For
example, measures like the use of a job coach, personal
assistant, service animal, or adaptive strategy that might
mitigate, or even allow an individual to otherwise avoid
performing particular major life activities, also would not be
considered in determining whether an impairment substantially
limits a major life activity.
Once the ameliorative effects of a mitigating measure can
no longer be considered in determining whether an impairment is
substantially limiting, it is expected that individuals who
were improperly excluded from the ADA's protected class will be
found to be substantially limited and entitled to protection
from disability-based discrimination. Examples of cases that
likely would be decided differently with regard to the
threshold question of whether one qualifies as disabled once
the effects of mitigating measures are not taken into account
include: McClure v. General Motors Corp.,\56\ where the court
found that an individual with muscular dystrophy who
successfully learned to live and work with his disability was
not protected by the ADA; Orr v. Wal-Mart Stores, Inc.,\57\
where, after noting that the Supreme Court's Sutton decision
required consideration of the impact of the plaintiff's careful
regimen of medicine, exercise, and diet, the court declined to
consider the impact of uncontrolled diabetes on plaintiff's
ability to see, speak, read, and walk; Todd v. Academy
Corp.,\58\ where the court found that, ``without medication,
Plaintiff would suffer daily seizures, including grand mal
seizures which involve loss of consciousness, general
thrashing, and tonoclonic activity,'' but concluding that the
plaintiff was not disabled because medication reduced the
frequency and intensity of these seizures; Gonzales v. National
Bd. Of Medical Examiners,\59\ where the court found that an
individual with a diagnosed learning disability was not
substantially limited after considering the impact of self-
accommodations that allowed him to read and achieve academic
success, and also failing to consider whether these required
self-accommodations sufficiently restricted plaintiff as to the
condition, manner or duration under which he performed these
activities; McMullin v. Ashcroft,\60\ where ``[v]iewing
Plaintiff's impairment in light of the corrective measures of
his medication,'' the court concluded that the plaintiff was
not substantially limited enough to be protected by the ADA.
---------------------------------------------------------------------------
\56\75 Fed. Appx. 983 (5th Cir. 2003).
\57\297 F.3d 720 (8th Cir. 2002).
\58\57 F.Supp.2d 448, 452 (S.D. Tex. 1999)
\59\225 F.3d 620 (6th Cir. 2000).
\60\337 F.Supp. 2d 1281, 1289 (D. Wyo. 2004)
---------------------------------------------------------------------------
Sec. 5. Discrimination on the Basis of Disability. Section
5 amends certain provisions contained in Title I of the ADA,
which is within the jurisdiction of the Education and Labor
Committee. Section 5 prohibits discrimination ``on the basis of
disability'' rather than ``against a qualified individual with
a disability because of the disability of such
individual.''\61\ This change harmonizes the ADA with other
civil rights laws by focusing on whether a person who has been
discriminated against has proven that the discrimination was
based on a personal characteristic (disability), not on whether
he or she has proven that the characteristic exists. Section 5
also makes clear that an individual who suffers an adverse
employment action as the result of an employer's use of
qualification standards, employment tests, or other selection
criteria that are based on uncorrected vision may challenge
those visions requirements and that the covered entity must
show that such requirements are job-related and consistent with
business necessity. This provision is needed to ensure that
vision requirements are job-related and consistent with
business necessity in light of the provision requiring
consideration of the ameliorative effects of ordinary
eyeglasses and contact lenses in determining whether an
individual has a disability.
---------------------------------------------------------------------------
\61\42 U.S.C. Sec. 12112(a).
---------------------------------------------------------------------------
Sec. 6. Rules of Construction. Section 6 clarifies that
nothing in the ADA alters the standards for determining
eligibility for benefits under State workers' compensation laws
or under State and Federal disability benefits programs. In
addition, section 6 prohibits reverse discrimination claims by
disallowing claims based on the lack of disability (e.g., a
claim by someone without a disability that someone with a
disability was treated more favorably by, for example, being
granted a reasonable accommodation or modification to services
or programs).
Section 6 also specifies that the duty to provide
reasonable accommodations under Title I or the duty to modify
policies, practices, or procedures under Titles II or III is
not triggered where an individual qualifies for coverage under
the ADA solely by being ``regarded as'' disabled under the
third prong of the definition of disability. This makes clear
that the duty to accommodate or modify arises only when an
individual establishes coverage under the first or second prong
of the definition. This change responds to court decisions that
have interpreted the ADA to require accommodation or
modification for individuals who qualify as being ``regarded
as'' disabled and may have been limited in a major life
activity, but who were not able to meet the Supreme Court's
demanding standard for being substantially limited under the
first prong of the definition.\62\ Because the changes made by
this bill should restore the correct interpretation of the
first prong, courts should no longer need to resort to a
strained interpretation of prong three in order to require
reasonable accommodations or modifications. This clarification
is not intended to diminish the obligation to provide
accommodations or modifications as required under titles I, II,
or III, or any other provision of the ADA. For example, under
Section 509 of the ADA, the Architect of the Capitol is
responsible for ensuring that, in all matters other than
employment, the rights and protections afforded by the ADA
shall be applied to the Senate and House of Representatives.
The Committee believes that, in fulfilling this obligation, the
Architect of the Capitol should replace all round doorknobs
with lever door handles or install push-bar doors in all
principle entryways in any office of the House of
Representatives or the Senate (not including the Capitol
building).
---------------------------------------------------------------------------
\62\See, e.g., Kelly v. Metallics West, Inc., 410 F.3d 670 (10th
Cir. 2005) (individual who needed supplemental oxygen after being
discharged from the hospital due to a pulmonary embolism did not have a
substantially limiting impairment but was regarded as disabled and
should have been accommodated by being allowed to use her supplemental
oxygen while at work).
---------------------------------------------------------------------------
Finally, section 6 responds to Supreme Court decisions that
question whether any agency has authority to issue regulations
or guidance for the definition of ``disability'' contained in
Section 3 of the ADA.\63\ Section 6 clarifies that the
regulatory authority granted to the Equal Employment
Opportunity Commission, the Attorney General, and the Secretary
of Transportation under the ADA includes the authority to issue
regulations implementing the generally applicable definition
sections of the ADA, including the definition of disability.
---------------------------------------------------------------------------
\63\42 U.S.C. Sec. 12102(2); See, e.g., Sutton, 527 U.S. at 479
(``no agency, however, has been given authority to issue regulations
implementing the generally applicable provisions of the ADA.'').
---------------------------------------------------------------------------
Sec. 7. Conforming Amendments. Section 7 ensures that the
definition of disability in Section 7 of the Rehabilitation Act
of 1973, which uses the same definition of disability as the
ADA, remains consistent with the ADA. The Rehabilitation Act of
1973 preceded the ADA in providing civil rights protections to
individuals with disabilities and Congress modeled the ADA's
definition on the Rehabilitation Act and its implementing
regulations. The ADA (under Titles II and III), and Section 504
of the Rehabilitation Act provide overlapping coverage for many
entities, including public schools, institutions of higher
education, childcare facilities, and other entities receiving
Federal funds. As a result, maintaining uniform definitions in
the two Federal statutes is critical so that such entities will
operate under one consistent standard, and the civil rights of
individuals with disabilities will be protected in all
settings.
Sec. 8. Effective Date. Section 8 provides that the
amendments made by the bill take effect January 1, 2009.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
AMERICANS WITH DISABILITIES ACT OF 1990
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents is as
follows:
Sec. 1. Short title; table of contents.
* * * * * * *
[Sec. 3. Definitions.]
Sec. 3. Definition of disability.
Sec. 4. Additional definitions.
* * * * * * *
TITLE V--MISCELLANEOUS PROVISIONS
* * * * * * *
Sec. 506. Rule of construction regarding regulatory authority.
Sec. [506] 507. Technical assistance.
Sec. [507] 508. Federal wilderness areas.
Sec. [508] 509. Transvestites.
Sec. [509] 510. Coverage of Congress and the agencies of the legislative
branch.
Sec. [510] 511. Illegal use of drugs.
Sec. [511] 512. Definitions.
Sec. [512] 513. Amendments to the Rehabilitation Act.
Sec. [513] 514. Alternative means of dispute resolution.
Sec. [514] 515. Severability.
* * * * * * *
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
[(1) some 43,000,000 Americans have one or more
physical or mental disabilities, and this number is
increasing as the population as a whole is growing
older;]
(1) physical or mental disabilities in no way
diminish a person's right to fully participate in all
aspects of society, yet many people with physical or
mental disabilities have been precluded from doing so
because of discrimination; others who have a record of
a disability or are regarded as having a disability
also have been subjected to discrimination;
* * * * * * *
[(7) individuals with disabilities are a discrete
and insular minority who have been faced with
restrictions and limitations, subjected to a history of
purposeful unequal treatment, and relegated to a
position of political powerlessness in our society,
based on characteristics that are beyond the control of
such individuals and resulting from stereotypic
assumptions not truly indicative of the individual
ability of such individuals to participate in, and
contribute to, society;]
* * * * * * *
[SEC. 3. DEFINITIONS.
[As used in this Act:
[(1) Auxiliary aids and services.--The term
``auxiliary aids and services'' includes--
[(A) qualified interpreters or other
effective methods of making aurally delivered
materials available to individuals with hearing
impairments;
[(B) qualified readers, taped texts, or
other effective methods of making visually
delivered materials available to individuals
with visual impairments;
[(C) acquisition or modification of
equipment or devices; and
[(D) other similar services and actions.
[(2) Disability.--The term ``disability'' means,
with respect to an individual--
[(A) a physical or mental impairment that
substantially limits one or more of the major
life activities of such individual;
[(B) a record of such an impairment; or
[(C) being regarded as having such an
impairment.
[(3) State.--The term ``State'' means each of the
several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the
Virgin Islands, the Trust Territory of the Pacific
Islands, and the Commonwealth of the Northern Mariana
Islands.]
SEC. 3. DEFINITION OF DISABILITY.
As used in this Act:
(1) Disability.--The term ``disability'' means,
with respect to an individual--
(A) a physical or mental impairment that
substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment (as described in paragraph (4)).
(2) Substantially limits.--The term ``substantially
limits'' means materially restricts.
(3) Major life activities.--
(A) In general.--For purposes of paragraph
(1), major life activities include, but are not
limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading,
concentrating, thinking, communicating and
working.
(B) Major bodily functions.--For purposes
of paragraph (1), a major life activity also
includes the operation of a major bodily
function, including but not limited to,
functions of the immune system, normal cell
growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.
(4) Regarded as having such an impairment.--For
purposes of paragraph (1)(C):
(A) An individual meets the requirement of
``being regarded as having such an impairment''
if the individual establishes that he or she
has been subjected to an action prohibited
under this Act because of an actual or
perceived physical or mental impairment whether
or not the impairment limits or is perceived to
limit a major life activity.
(B) Paragraph (1)(C) shall not apply to
impairments that are transitory and minor. A
transitory impairment is an impairment with an
actual or expected duration of 6 months or
less.
(5) Rules of construction regarding the definition
of disability.--The definition of ``disability'' in
paragraph (1) shall be construed in accordance with the
following:
(A) To achieve the remedial purposes of
this Act, the definition of ``disability'' in
paragraph (1) shall be construed broadly.
(B) An impairment that substantially limits
one major life activity need not limit other
major life activities in order to be considered
a disability.
(C) An impairment that is episodic or in
remission is a disability if it would
substantially limit a major life activity when
active.
(D)(i) The determination of whether an
impairment substantially limits a major life
activity shall be made without regard to the
ameliorative effects of mitigating measures
such as--
(I) medication, medical supplies,
equipment, or appliances, low-vision
devices (which do not include ordinary
eyeglasses or contact lenses),
prosthetics including limbs and
devices, hearing aids and cochlear
implants or other implantable hearing
devices, mobility devices, or oxygen
therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or
auxiliary aids or services; or
(IV) learned behavioral or adaptive
neurological modifications.
(ii) The ameliorative effects of the
mitigating measures of ordinary eyeglasses or
contact lenses shall be considered in
determining whether an impairment substantially
limits a major life activity.
(iii) As used in this subparagraph--
(I) the term ``ordinary eyeglasses
or contact lenses'' means lenses that
are intended to fully correct visual
acuity or eliminate refractive error;
and
(II) the term ``low-vision
devices'' means devices that magnify,
enhance, or otherwise augment a visual
image.
SEC. 4. ADDITIONAL DEFINITIONS.
As used in this Act:
(1) Auxiliary aids and services.--The term
``auxiliary aids and services'' includes--
(A) qualified interpreters or other
effective methods of making aurally delivered
materials available to individuals with hearing
impairments;
(B) qualified readers, taped texts, or
other effective methods of making visually
delivered materials available to individuals
with visual impairments;
(C) acquisition or modification of
equipment or devices; and
(D) other similar services and actions.
(2) State.--The term ``State'' means each of the
several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the
Virgin Islands, the Trust Territory of the Pacific
Islands, and the Commonwealth of the Northern Mariana
Islands.
TITLE I--EMPLOYMENT
SEC. 101. DEFINITIONS.
As used in this title:
(1) * * *
* * * * * * *
(8) Qualified individual [with a disability].--The
term ``qualified individual [with a disability]'' means
an individual [with a disability] who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such
individual holds or desires. For the purposes of this
title, consideration shall be given to the employer's
judgment as to what functions of a job are essential,
and if an employer has prepared a written description
before advertising or interviewing applicants for the
job, this description shall be considered evidence of
the essential functions of the job.
* * * * * * *
SEC. 102. DISCRIMINATION.
(a) General Rule.--No covered entity shall discriminate
against a qualified individual [with a disability because of
the disability of such individual] on the basis of disability
in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.
(b) Construction.--As used in subsection (a), the term
``[discriminate] discriminate against a qualified individual on
the basis of disability'' includes--
(1) * * *
* * * * * * *
SEC. 103. DEFENSES.
(a) * * *
* * * * * * *
(c) Qualification Standards and Tests Related to
Uncorrected Vision.--Notwithstanding section 3(5)(D)(ii), a
covered entity shall not use qualification standards,
employment tests, or other selection criteria based on an
individual's uncorrected vision unless the standard, test, or
other selection criteria, as used by the covered entity, is
shown to be job-related for the position in question and
consistent with business necessity.
[(c)] (d) Religious Entities.--
(1) * * *
* * * * * * *
[(d)] (e) List of Infectious and Communicable Diseases.--
(1) * * *
* * * * * * *
TITLE V--MISCELLANEOUS PROVISIONS
SEC. 501. CONSTRUCTION.
(a) * * *
* * * * * * *
(e) Benefits under State Worker's Compensation Laws.--
Nothing in this Act alters the standards for determining
eligibility for benefits under State worker's compensation laws
or under State and Federal disability benefit programs.
(f) Claims of no Disability.--Nothing in this Act shall
provide the basis for a claim by a person without a disability
that he or she was subject to discrimination because of his or
her lack of disability.
(g) Reasonable Accommodations and Modifications.--A covered
entity under title I, a public entity under title II, and any
person who owns, leases (or leases to), or operates a place of
public accommodation under title III, need not provide a
reasonable accommodation or a reasonable modification to
policies, practices, or procedures to an individual who meets
the definition of disability in section 3(1) solely under
subparagraph (C).
* * * * * * *
SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.
The authority to issue regulations granted to the Equal
Employment Opportunity Commission, the Attorney General, and
the Secretary of Transportation under this Act includes the
authority to issue regulations implementing the definitions
contained in sections 3 and 4.
SEC. [506] 507. TECHNICAL ASSISTANCE.
(a) * * *
* * * * * * *
SEC. [507] 508. FEDERAL WILDERNESS AREAS.
(a) * * *
* * * * * * *
SEC. [508] 509. TRANSVESTITES.
For the purposes of this Act, the term ``disabled'' or
``disability'' shall not apply to an individual solely because
that individual is a transvestite.
SEC. [509] 510. INSTRUMENTALITIES OF THE CONGRESS
The General Accounting Office, the Government Printing
Office, and the Library of Congress shall be covered as
follows:
(1) * * *
* * * * * * *
SEC. [510] 511. ILLEGAL USE OF DRUGS.
(a) * * *
* * * * * * *
SEC. [511] 512. DEFINITIONS.
(a) * * *
* * * * * * *
SEC. [512] 513. AMENDMENTS TO THE REHABILITATION ACT.
(a) * * *
* * * * * * *
SEC. [513] 514. ALTERNATIVE MEANS OF DISPUTE RESOLUTION.
Where appropriate and to the extent authorized by law, the
use of alternative means of dispute resolution, including
settlement negotiations, conciliation, facilitation, mediation,
factfinding, minitrials, and arbitration, is encouraged to
resolve disputes arising under this Act.
SEC. [514] 515. SEVERABILITY.
Should any provision in this Act be found to be
unconstitutional by a court of law, such provision shall be
severed from the remainder of the Act, and such action shall
not affect the enforceability of the remaining provisions of
the Act.
----------
REHABILITATION ACT OF 1973
* * * * * * *
SEC. 7. DEFINITIONS.
For the purposes of this Act:
(1) * * *
* * * * * * *
(9) Disability.--The term ``disability'' means--
(A) * * *
(B) for purposes of sections 2, 14, and 15,
and titles II, IV, V, and VII, [a physical or
mental impairment that substantially limits one
or more major life activities] the meaning
given it in section 3 of the Americans with
Disabilities Act of 1990.
* * * * * * *
(20) Individual with a disability.--
(A) * * *
(B) Certain programs; limitations on major
life activities.--Subject to subparagraphs (C),
(D), (E), and (F), the term ``individual with a
disability'' means, for purposes of sections 2,
14, and 15, and titles II, IV, V, and VII of
this Act, [any person who--
[(i) has a physical or mental
impairment which substantially limits
one or more of such person's major life
activities;
[(ii) has a record of such an
impairment; or
[(iii) is regarded as having such
an impairment.] any person who has a
disability as defined in section 3 of
the Americans with Disabilities Act of
1990.
* * * * * * *
ADDITIONAL VIEWS
The Americans with Disabilities Act (``ADA''), enacted
almost 18 years ago, removed many physical barriers disabled
people faced in their daily lives. It also helped remove the
mental barriers that often prevented non-disabled Americans
from looking beyond wheel chairs and walking canes and seeing
disabled Americans as the friends and co-workers they are. We
support H.R. 3195, as amended, in the hopes that it will
further these worthy goals.
These additional views are written with the expectation
that courts will focus on the statutory text of the
legislation, not the language placed in committee reports, when
interpreting this legislation. When the Supreme Court, in
previous decisions, interpreted the ADA, it did so based
largely if not exclusively on the meaning and import of its
statutory text, not its ``legislative history.''\1\
---------------------------------------------------------------------------
\1\For example, in Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999), the Supreme Court analyzed the ADA by ``[l]ooking at the Act as
a whole,'' and in doing so the Court concluded ``we have no reason to
consider the ADA's legislative history.'' Id. at 482.
---------------------------------------------------------------------------
Nevertheless, we offer these additional views to emphasize
our own understanding of how H.R. 3195, as amended, restores
the original meaning of the Americans with Disabilities Act
when it was originally enacted.
That legislative history from both the House Education and
Labor and the Senate committee reports provided that
``[p]ersons with minor, trivial impairments such as a simple
infected finger are not impaired in a major life activity,''\2\
and consequently those who had such minor and trivial
impairments would not be covered under the ADA.
---------------------------------------------------------------------------
\2\S. Rep. No. 116, 101st Cong. 1st Sess. pt. 1 (1989) at 23; H.R.
Rep. No. 485, 101st Cong. 2d Sess., pt. 2 (1990) at 52.
---------------------------------------------------------------------------
We believe that understanding remains consistent with the
statutory language and is entirely appropriate, and we expect
the courts to agree with and apply that interpretation. If that
interpretation were not to hold but were to be broadened
improperly by the judiciary, an employer would be under a
federal obligation to accommodate people with stomach aches, a
common cold, mild seasonal allergies, or even a hangnail.
Consequently, we want to make clear that we believe that the
drafters and supporters of this legislation, including
ourselves, intend to exclude minor and trivial impairments from
coverage under the ADA, as they have always been excluded.
Also, the Supreme Court in Toyota Motor Manufacturing v.
Williams held that under the original ADA, ``[t]he impairment's
impact must also be permanent or long term.''\3\ While the
findings in H.R. 3195, as amended, state that the purpose of
the legislation is ``to provide a new definition of
`substantially limits' to indicate that Congress intends to
depart from the strict and demanding standard applied by the
Supreme Court in Toyota Motor Manufacturing,'' we understand
that this finding does not and is not meant to express
disagreement with or to overturn the Court's determination in
that case that the ADA applies only to individuals with
impairments that are permanent or long term in impact.
---------------------------------------------------------------------------
\3\534 U.S. 184, 198 (2002).
---------------------------------------------------------------------------
We hope and expect that these understandings of H.R. 3195,
as amended, will prevail, for if they do not, the courts may be
flooded with frivolous cases brought by those who were not
intended to be protected under the original ADA. If that
happens, those who would have been clearly covered under the
original ADA, such as paralyzed veterans or the blind, may be
forced to wait in line behind untold numbers of others filing
cases regarding minor or trivial impairments. We do not believe
anyone supporting this new language wants that to happen, and
we want to make that clear for the record.
Lamar Smith.
Elton Gallegly.
Bob Goodlatte.
Chris Cannon.
Ric Keller.
Darrell Issa.
Mike Pence.
J. Randy Forbes.
Steve King.
Tom Feeney.
Trent Franks.
Louie Gohmert.
Jim Jordan.