Colloquy, From Congressional Record, Sept. 17, 2008

Mr. STARK. I thank the gentleman for yielding. I am pleased that this bill, S. 3406, will sustain the rights and remedies available to individuals with disabilities, including individuals with learning disabilities just as in the measure passed by the House, H.R. 3195. Would the Chairman agree that the measure before us rejects the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning reading, writing, thinking, or speaking?

Mr. GEORGE MILLER of California. Yes, I would. As chairman of the Education and Labor Committee, I agree that both H.R. 3195 and S. 3406 reject the holding that academic success is inconsistent with the finding that an individual is substantially limited in such major life activities. As such, we reject the findings in Price v. National Board of Medical Examiners, Gonzalez v. National Board of Medical Examiners, and Wong v. Regents of University of California.

Mr. STARK. I thank the Chairman. Specific learning disabilities, such as dyslexia, are neurologically based impairments that substantially limit the way these individuals perform major life activities, like reading or learning, or the time it takes to perform such activities often referred to as the condition, manner, or duration. This legislation will reestablish coverage for these individuals by ensuring that the definition of this ability is broadly construed and the determination does not consider the use of mitigating measures. Given this, would the chairman agree that these amendments support the finding in Bartlett v. New York State Board of Law Examiners in which the court held that in determining whether the plaintiff was substantially limited with respect to reading, Bartlett’s ability to “self-accommodate” should not be taken into consideration when determining whether she was protected by the ADA?

Mr. GEORGE MILLER of California. Yes, I would. As we stated in the committee report on H.R. 3195, the committee supports the finding in Bartlett. Our report explains that “an individual with an impairment that substantially limits a major life activity should not be penalized when seeking protection under the ADA simply because he or she managed their own adaptive strategies or received informal or undocumented accommodations that have the effect of lessening the deleterious impacts of their disability.”

Mr. STARK. I want to thank the chairman. It is indeed our full intention to ensure that the civil rights law retains its focus on protecting individuals with disabilities and not the interests of entities that may need to address their practices in accordance with the ADA. I look forward to working with the chairman to continue to protect individuals with specific learning disabilities to ensure that unnecessary barriers are not being erected in their path.

Mr. ANDREWS. What we have done in this Act is to restore the commonsense, meaningful definition of what “disability” means, not so that people with disabilities get special privileges, but so they get the same rights and opportunities that everybody else is guaranteed in this country under the law.

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

Over the last 18 years, the Court has chipped away at that promise and at Congress’s clear original intent. We said we wanted broad coverage for people with disabilities and people regarded as disabled. Important phrase, “regarded as disabled”. What the Supreme Court really said, well, if you can make sure that your disability does not disable you.

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

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

The House of Representatives passed the ADA Amendments Act, H.R. 3195, on June 25, 2008, by an overwhelming vote of 402–17. The purpose of this legislation was to restore the intent of Congress to cover a broad group of individuals with disabilities under the ADA and to eliminate the problem of courts focusing too heavily on whether individuals were covered by the law rather than on whether discrimination occurred. That commitment has now been echoed by passage in the Senate of the ADA Amendments Act, S. 3406, by unanimous consent.

While the intent is the same, as discussed more fully below, S. 3406 takes a slightly different approach than H.R. 3195. Consequently, we want to make it clear that where the House Committee Reports and our joint statement used the term “materially restricts” to establish points in various examples, those examples should be read to convey the same points, and the term “materially restricts” should be understood to refer to the less demanding standard for the term “substantially limits” prescribed by both H.R. 3195 and S. 3406. For example, the statement in the House Education and Labor Report that “the Committee expects that a plaintiff such as Littleton could provide evidence of material restriction in the major life activities of thinking, learning, communicating and interacting with others” should be understood to mean that the Committee expects that a plaintiff such as Littleton could provide evidence of substantial limitation in thinking, communicating and interacting with others. (See Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874 (11th Cir. 2007)).

The key difference between the two bills is that S. 3406 uses a different means to achieve the same goal that we achieved with H.R. 3195. As we explain below, we are comfortable accepting this approach.

In H.R. 3195, we achieved this goal by redefining the term “substantially limits” to mean “materially restricts” in order to indicate to the courts that they had incorrectly interpreted the term “substantially limits” in Toyota Motor Mfg. of Kentucky, Inc. v. Williams, and to convey to the courts our expectation that they would apply a less demanding standard of severity than had been applied by the Supreme Court.

Our colleagues in the Senate, however, were uncomfortable with creating a new term in the statute. Hence, they achieved the same goal through a different means. Instead of redefining the term “substantially limits”, S. 3406 states that such term “shall be interpreted consistently with the findings and purposes” of the ADA Amendments Act. This is a textual provision that will legally guide the agencies and courts in properly interpreting the term “substantially limits”. With regard to the findings and purposes that the textual provision requires the agencies and court to use, S. 3406 incorporates all of the findings and purposes of H.R. 3195, including statements that Congress intended for the ADA to provide broad coverage and that this legislation rejects the Supreme Court’s decisions in Sutton and Williams that inappropriately narrowed the scope of protection of the ADA.

In order to explain how it intended the definition of “substantially limits” to be interpreted, the Senate added findings which highlighted the fact that the Williams decision placed too high a threshold on the definition of substantially limits and that the EEOC’s interpretative regulations were similarly drafted or interpreted to create a burden not contemplated by the Congress. Consistent with these findings, the Senate added two purposes which directed the EEOC to amend its regulations to reflect the purposes of the ADA as amended by the ADAAA and which noted that the thrust of ADA inquiry should be directed to the compliance obligations of the covered entities rather than the scope of the disability experienced by the individual asserting coverage under the Act.

While we believe that the approach we adopted in H.R. 3195 would have been workable for the courts—i.e., providing a new definition of “substantially limits” in order to convey to courts our intention that they should apply a lower standard of severity than they previously had—we accept the considered judgment of our colleagues in the Senate that their approach achieves the same end, but in a manner more suitable to their interests.

S. 3406 also modifies the rule of construction that we had placed in H.R. 3195. Under the Senate’s construction, the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act”. We understand that this provision will have the same meaning as the rule of construction that we had included in H.R. 3195, but with a clarification that the courts may not interpret the definition of disability in a manner inconsistent with the terms of the ADA. That, of course, is true.

In addition, the changes made by S. 3406 will send an important signal to the courts. We expect that courts interpreting the ADA after these amendments are enacted will not demand such an extensive analysis over whether a person’s physical or mental impairment constitutes a disability. Our goal throughout this process has been to simplify that analysis.

Mr. COURTNEY. Madam Speaker, I rise in strong support of the Americans With Disabilities Act Amendments Act of 2008 (ADAAA), S. 3406. I want to commend Majority Leader HOYER and Chairman MILLER for moving this bill so quickly after Senate passage late last week.

As the Education and Labor Committee said in its report on H.R. 3195, this bill provides “an important step towards restoring the original intent of Congress. The scope of protection under the ADA was intended to be broad and inclusive.

Unfortunately, the courts have narrowed the interpretation of disability and found that a large number of people with substantially limiting impairments are not to be considered people with disabilities. Unfortunately, the ADA has been misinterpreted by the courts resulting in a narrow view of those eligible to receive certain reasonable accommodations including individuals with learning disabilities. Historically, certain individuals with learning disabilities seeking accommodations in higher education—including high stakes exams—have seen their access to testing accommodations severely undercut by testing companies not willing to consider and support that learning disabilities are neurologically based, lifelong disabilities that may exist in students with high academic achievement because the individual has been able to cope and mitigate the negative impact while simultaneously being substantially limited in one or more major life activities.

Too many individuals with documented learning disabilities, including dyslexia, are denied access to easily administered and often low-cost accommodations that would make the critical difference in allowing them to demonstrate their knowledge. These amendments to the ADA do not provide any special treatment, but rather, ensure that each individual with a learning disability has every opportunity to apply for and receive a reasonable accommodation so he/she can move forward in his/ her chosen educational and career paths.

This bill continues to reinforce what we stated in our bipartisan committee report, that “the determination of whether an impairment substantially limits a major life activity is to be made on an individualized basis”. There should be no attempt to discriminate against a class of individuals based on any one disability. For example, people with dyslexia are diagnosed based on an unexpected difficulty in reading. This requires a careful analysis of the method and manner in which this impairment substantially limits an individual’s ability to read, which may mean a difference in the duration, condition or manner of reading—for example, taking more time—but may not result in a less capable reader.

Together, we can ensure that the ADA is accurately interpreted to provide access to accommodations for those that have appropriately documented disabilities. By supporting and fostering the academic potential for these individuals, we reap the benefits when talented, ambitious and creative individuals are able to fulfill their education dreams and contribute in a meaningful way to our society.

Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today in support of S. 3406, the “ADA Restoration Act of 2007”. I wholeheartedly support this bill and urge my colleagues to support it also. The changes embodied by this Act, that restore the with Disabilities Act of 1990 (“ADA”) to its original purpose, are long overdue. S. 3406, the “ADA Restoration Act of 2007”, amends the definition of “disability” in the ADA in response to the Supreme Court’s narrow interpretation of the definition, which has made it extremely difficult for individuals with serious health conditions—epilepsy, diabetes, cancer, muscular dystrophy, multiple sclerosis and severe intellectual impairment—to prove that they qualify for protection under the ADA. The Supreme Court has narrowed the definition in two ways: (1) by ruling that mitigating measures that help control an impairment like medicine, hearing aids, or any other treatment must be considered in determining whether an impairment is disabling enough to qualify as a disability; and (2) by ruling that the elements of the definition must be interpreted “strictly to create a demanding standard for qualifying as disabled”. The Court’s treatment of the ADA is at odds with judicial treatment of other civil rights statutes, which usually are interpreted broadly to achieve their remedial purposes. It is also inconsistent with Congress’s intent.

The Committee will consider a substitute that represents the consensus view of disability rights groups and the business community. That substitute restores Congressional intent by, among other things:

Disallowing consideration of mitigating measures other than corrective lenses (ordinary eyeglasses or contacts) when determining whether an impairment is sufficiently limiting to qualify as a disability;

Maintaining the requirement that an individual qualifying as disabled under the first of the three-prong definition of “disability” show that an impairment “substantially limits” a major life activity but defining “substantially limits” as a less burdensome “materially restricts”; Clarifying that anyone who is discriminated against because of an impairment, whether or not the impairment limits the performance of any major life activities, has been “regarded as” disabled and is entitled to the ADA’s protection.

The hearing provided an opportunity for the Constitution Subcommittee to examine how the Supreme Court’s decisions regarding the definition of “disability” have affected ADA protection for individuals with disabilities and to consider the need for legislative action. Representative HOYER, one of the lead sponsors of the original act and, along with Representative SENSENBRENNER, lead House cosponsor of the ADA Restoration Act, explained the need to respond to court decisions “that have sharply restricted the class of people who can invoke protection under the law and [reinstate] the original congressional intent when the ADA passed”. Explaining Congress’s choice to adopt the definition of “disability” from the Rehabilitation Act because it had been interpreted generously by the courts, Representative HOYER testified that Congress had never anticipated or intended that the courts would interpret that definition so narrowly:

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

Representative HOYER, joined by all of the witnesses except Mr. Lorber, urged Congress to respond by passing H.R. 3195, the House companion, to amend the definition of “disability”. Mr. Lorber, appearing on behalf of the Chamber of Commerce, opposed H.R. 3195 as an overly broad response to court decisions that accurately reflected statutory language and congressional intent.

Since the subcommittee’s hearing, several changes have been made to the bill, which are reflected in the substitute that will likely be considered by the committee. The substitute, described section-by-section below, represents the consensus of the disability rights and business groups and is supported by, among others, the Chamber of Commerce.

Importantly, Section 4 of the bill amends the definition of “disability” and provides standards for applying the amended definition. While retaining the requirement that a disability “substantially limits” a “major” life activity under prongs 1 and 2 of the definition of disability, section 4 redefines “substantially limits” as “materially restricts” to indicate a less stringent standard. Thus, while the limitation imposed by an impairment must be important, it need not rise to the level of preventing or severely restricting the performance of major life activities in order to qualify as a disability. Section 4 provides an illustrative list of life activities that should be considered “major”, and clarifies that an individual has been “regarded as” disabled and is entitled to protection under the ADA if discriminated against because of an impairment, whether or not the impairment limits the performance of any major life activities. Section 4 requires broad construction of the definition and prohibits consideration of mitigating measures (with the exception of ordinary glasses or contact lenses) in determining whether an impairment substantially limits a major life activity.

Ms. BALDWIN. Madam Speaker, I rise in support of S. 3406, the Americans with Disabilities Act (ADA) Amendments Act. This vital legislation restores the civil rights protections that Congress intended for people with disabilities in passing the ADA in 1990. In the years since passage of the ADA, courts—including the U.S. Supreme Court—have narrowed the protective reach of this law, undermining Congress’s intent. It is flatly unacceptable that Americans who experienced disability-based discrimination have been denied protection of the ADA and barred from challenging discriminatory conduct. This bill is an important and necessary remedy, and I’m grateful to our champions in the House, Mr. HOYER and Mr. SENSENBRENNER, as well as Senator HARKIN and others who shepherded the ADA Amendments Act through the Senate.

Importantly, the ADA Amendments Act addresses the restrictive interpretation of what it means to have a “disability” and therefore be protected against disability discrimination. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court ruled that the definition of disability must be read “strictly to create a demanding standard for qualifying as disabled” and, to meet the definition, an individual must have an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most peoples daily lives”. Due to that and other narrow court interpretations, people with HIV who have been fired, not hired, or suffered other adverse employment actions have been denied the protections of the ADA. Although the ADA clearly intended to protect people living with HIV from being discriminated against based on having HIV, many have had their lawsuits derailed by disputes over whether they meet a narrowly interpreted definition of the term “disability”. For people living with HIV, all too often whether or not they could proceed with their discrimination claim has turned on the court’s view of evidence as to their child-bearing ability and intentions: highly personal, intimate matters that are completely unrelated to the discrimination they experienced.

The ADA Amendments Act remedies the courts’ misinterpretation of the ADA by explicitly stating that the definition of “disability” must be interpreted broadly to achieve the ADA’s remedial purposes, by clarifying the definition of “disability” through examples of “major life activities”, and by providing that the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures. Of significance for people living with HIV, among the listed examples of “major life activities” are “functions of the immune system”, as well as “reproductive functions”. Under these new provisions, many individuals who were incorrectly denied coverage under the ADA will now be protected from discrimination.