Statement of the Managers to Accompany S

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Statement of the Managers to Accompany S ...

    Statement of the Managers to Accompany S. 3406, The Americans with

    Disabilities Act Amendments Act of 2008


    I. Purpose and Summary of the Legislation

    II. Background and Need for Legislation

    III. Legislative History and Committee Action

    IV. Explanation of the Bill and Committee Views

    V. Cost Estimate

    VI. Application of the Law to the Legislative Branch

    VII. Regulatory Impact Statement

    VIII. Section-by-Section Analysis

I. Purpose and Summary of the Legislation

    The purpose of S. 3406, the ADA Amendments Act of 2008 is to clarify the intention and

    enhance the protections of the Americans with Disabilities Act of 1990, landmark civil rights legislation that provided “a clear and comprehensive national mandate for the elimination of 1discrimination on the basis of disability. In particular, the ADA Amendments Act amends the

    definition of disability by providing clarification and instruction about the terminology used in the definition, by expanding the definition, and by rejecting several opinions of the United States Supreme Court that have had the effect of restricting the meaning and application of the definition of disability.

    S. 3406 is the product of an extensive bipartisan effort that included many hours of meetings and negotiation by legislative staff as well as by stakeholders including the disability, business, and education communities. In addition, two hearings were held in the Senate Health, Education, Labor, and Pensions Committee to explore the issues addressed in this legislation. The goal has been to achieve the ADA’s legislative objectives in a way that maximizes bipartisan consensus and minimizes unintended consequences.

    This legislation amends the Americans with Disabilities Act of 1990 by making the changes identified below.

    Aligning the construction of the Americans with Disabilities Act with Title VII of the Civil Rights Act of 1964, the bill amends Title I of the ADA to provide that no covered entity shall discriminate against a qualified individual on the basis of disability.

    The bill maintains the ADA’s inherently functional definition of disability as a physical or mental impairment that substantially limits one or more life activities; a record of such impairment; or being regarded as having such an impairment. It clarifies and expands the definition’s meaning and application in the following ways.

     1 42 U.S.C. ?12101.


    First, the bill deletes two findings in the ADA which led the Supreme Court to unduly restrict the meaning and application of the definition of disability. These findings are that there are “some 43,000,000 Americans have one or more physical or mental disabilities” and that “individuals with disabilities are a discrete and insular minority.” The Court treated these findings as

    limitations on how it construed other provisions of the ADA. This conclusion had the effect of interfering with previous judicial precedents holding that, like other civil rights statutes, the ADA must be construed broadly to effectuate its remedial purpose. Deleting these findings removes this barrier to construing and applying the definition of disability more generously. Second, the bill affirmatively provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the 2 It retains the term “substantially limits” from the original ADA definition terms of this Act.”

    but makes it clear that this is intended to be a less demanding standard than that enunciated by 3the U.S. Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. With this

    rule of construction and relevant purpose language, the bill rejects the Supreme Court’s holding in Toyota v. Williams that the terms “substantially” and “major” in the definition of disability 4must be be interpreted strictly to create a demanding standard for qualifying as disabled,” as

    well as the Court's interpretation that “substantially limits” means “prevents or severely 5restricts.”

    Third, the bill prohibits consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining whether an impairment constitutes a disability. This provision and relevant purpose language rejects the Supreme 67Court’s holdings in Sutton v. United Air Lines and its companion cases that mitigating 8measures must be considered. The bill also provides that impairments that are episodic or in remission are to be assessed in an active state.

    Fourth, the bill provides new instruction on what may constitute “major life activities. It

    provides a non-exhaustive list of major life activities within the meaning of the ADA. In addition, the bill expands the category of major life activities to include the operation of major bodily functions.

    Fifth, the bill removes from the third “regarded as” prong of the disability definition the

    requirement that an individual demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. Under the bill, therefore, an individual can establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment. Because the bill thus broadens application of this third prong of the disability definition, entities covered by the ADA will not be required to provide accommodations or to modify policies and

     2 This rule of construction is consistent with earlier judicial precedents and parallels the rule of construction in the Religious Land Use and Institutionalized Persons Act, which Congress unanimously passed in 2002. 3 Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). 4 Id. at 197. 5 Id. at 198. See also, 29 CFR 1630.2. 6 Sutton v. United Airlines, 527 U.S. 471 (1999). 7 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 8 Ordinary eyeglasses and contact lenses are excluded from this prohibition.


    procedures for individuals who fall solely under the third prong. Such entities will, however, still be subject to discrimination claims.

    Finally, the bill clarifies that the agencies that currently issue regulations under the ADA have regulatory authority related to the definitions contained in Section 3. Conforming amendments to Section 7 of the Rehabilitation Act of 1973 are intended to ensure harmony between federal civil rights laws.

    II. Background and Need for Legislation

    When Congress passed the ADA in 1990, it adopted the functional definition of disability from 9the Section 504 of the Rehabilitation Act of 1973, in part, because after 17 years of development

    through case law the requirements of the definition were well understood. Within this framework, with its generous and inclusive definition of disability, courts treated the determination of disability as a threshold issue but focused primarily on whether unlawful discrimination had occurred.

    More recent Supreme Court decisions imposing a stricter standard for determining disability had the effect of upsetting this balance. After the Court’s decisions in Sutton that impairments must

    be considered in their mitigated state and in Toyota that there must be a demanding standard for

    qualifying as disabled, lower courts more often found that an individual’s impairment did not constitute a disability. As a result, in too many cases, courts would never reach the question whether discrimination had occurred.

    Thus, some 18 years later we are faced with a situation in which physical or mental impairments that would previously have been found to constitute disabilities are not considered disabilities under the Supreme Court’s narrower standard. These can include individuals with impairments

    such as amputation, intellectual disabilities, epilepsy, multiple sclerosis, diabetes, muscular dystrophy, and cancer. The resulting court decisions contribute to a legal environment in which individuals must demonstrate an inappropriately high degree of functional limitation in order to be protected from discrimination under the ADA.

    The ADA Amendments Act rejects the high burden required in these cases and reiterates that Congress intends that the scope of the Americans with Disabilities Act be broad and inclusive. It is the intent of the legislation to establish a degree of functional limitation required for an impairment to constitute a disability that is consistent with what Congress originally intended, a degree that is lower than what the courts have construed it to be. In addition, the bill provides for application of this standard to a wider range of cases by expanding the category of major life activities. These steps, resulting from extensive bipartisan negotiation and discussion among legislators and stakeholders, are intended to provide for more generous coverage and application of the ADA’s prohibition on discrimination through a framework that is more predictable,

    consistent, and workable for all entities subject to responsibilities under the ADA.

     9 29 U.S.C. ?794. Sections 501 and 503 of the Rehabilitation Act also use the same definition of disability and prohibit disability discrimination by federal employees and federal contractors, respectively. 29 U.S.C. ?? 791, 793. Note that the definition of disability is found in Section 705(20)(B).


III. Explanation of the Bill and Manager’s Views


The Americans with Disabilities Act of 1990 (“the ADA”) is a landmark statute that has

    fundamentally changed the lives of many millions of Americans with disabilities. The managers of this legislation were proud to be leaders in that effort that was accomplished in a deliberative careful manner that allowed for the development of a strong bipartisan coalition in both Houses of Congress and the Administration of President George H. W. Bush and led to Senate passage with a definitive vote of 91-6.

    However, as discussed in more detail below, a series of Court decisions have restricted the coverage and diminished the civil rights protections of the ADA, especially in the workplace, by

    narrowing its definition of disability. As a result, lower court cases have too often turned solely on the question of whether the plaintiff is an individual with a disability rather than the merits of discrimination claims, such as whether adverse decisions were impermissibly made by the employer on the basis of disability, reasonable accommodations were denied inappropriately, or qualification standards were unlawfully discriminatory.

    The managers have introduced the ADA Amendments Act of 2008 to restore the proper balance and application of the ADA by clarifying and broadening the definition of disability, and to increase eligibility for the protections of the ADA. It is our expectation that because this bill makes the definition of disability more generous, some people who were not covered before will now be covered. The strong bipartisan support for this legislation once again demonstrates the continuing bipartisan commitment to protecting the civil rights of individuals with disabilities among members of the Senate Committee on Health Education Labor and Pensions and the Senate as a whole.

    The ADA Amendments Act renews our commitment to ensuring that all Americans with disabilities, including a new generation of disabled veterans who are just beginning to grapple with the challenge of living to their full potential despite the limitations imposed by their disabilities, are able to participate to the fullest possible extent in all facets of society, including the workplace. We acknowledge and applaud the substantial improvements in medical science and the courageous efforts of individuals with disabilities to overcome the impact of those disabilities, but in no way wish to exclude them thereby from protection under the ADA.

    By retaining the essential elements of the definition of disability including the key term "substantially limits" we reaffirm that not every individual with a physical or mental impairment is covered by the first prong of the definition of disability in the ADA. An impairment that does not substantially limit a major life activity is not a disability under this prong. That will not change after enactment of the ADA Amendments Act, nor will the necessity of making this determination on an individual basis. What will change is the standard required for making this determination. This bill lowers the standard for determining whether an impairment constitute a


disability and reaffirms the intent of Congress that the definition of disability in the ADA is to be 10 interpreted broadly and inclusively.

Findings and Purposes

    Given the importance the Court has placed upon findings and purposes particularly in civil rights statutes like the ADA, the ADA Amendments Act contains a detailed Findings and Purposes section that the managers believe gives clear guidance to the courts and that they intend to be applied appropriately and consistently. As described above, the legislation deletes two findings in the ADA that have been interpreted by the Supreme Court to require a narrow definition of disability. We continue to believe that individuals with disabilities “have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of 11the individual ability of such individuals to participate in, and contribute to, society.”

    In addition to deleting the findings forming the basis of the Sutton and Toyota decisions, the bill

    states explicitly its purpose to reject the holdings in those cases (and their progeny), and to ensure broad coverage under the ADA. To be clear, the purposes section conveys our intent to clarify not only that “substantially limits” should be measured by a lower standard than that used 12in Toyota, but also that the definition of disability should not be unduly used as a tool for excluding individuals from the ADA’s protections.

    The bill expresses the clear intent of Congress that the EEOC will revise its regulations that similarly improperly define the term “substantially limits” as “significantly restricted”; again,

    this sets too high a standard.

    The bill’s purposes also reject the Supreme Court’s holding that mitigating measures must be considered when determining whether an impairment constitutes a disability. With the exception of ordinary eyeglasses and contact lenses, impairments must be examined in their unmitigated state.

    These purposes are specifically incorporated into the statute by the rule of construction providing that the term “substantially limits” shall be construed consistently with the findings and purposes

    of the ADA Amendments Act of 2008. This rule of construction, together with the rule of construction providing that the definition of disability shall be construed in favor of broad coverage of individuals sends a clear signal of our intent that the courts must interpret the definition of disability broadly rather than stringently.

     10 This bill does not change any current statutory requirement that an individual must be qualified to perform the essential functions of the job. 11 42 U.S.C. 12101. 12 The bill’s purposes include rejecting the holding in Toyota that in order for an impairment to be substantially

    limiting, the impairment must “prevent or severely restrict the individual from doing activities that are of central

    importance to most people’s lives.”


Definition of Disability

    In the ADA of 1990, Congress sought to protect anyone who experiences discrimination because of a current, past, or perceived disability. Under the ADA, there are three prongs of the definition of disability, with respect to an individual:

    (1) a physical or mental impairment that substantially limits one or more of the

    major life activities of such individual;

    (2) a record of such an impairment; or

    (3) being regarded as having such an impairment.

    This definition is of critical importance because as a threshold issue it determines whether an individual is covered by the ADA. The ADA Amendments Act retains the definition of disability but further defines and clarifies three critical terms within the existing definition (“substantially limits,” “major life activities,” “regarded as having such impairment”) and, under

    the rules of construction for the definition, adds several standards that must be applied when considering the definition of disability.

    Physical or Mental Impairment

The bill does not provide a definition for the terms “physical impairment” or “mental

    impairment.” The managers expect that the current regulatory definition of these terms, as promulgated by agencies such as the U.S. Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ) and the Department of Education Office of Civil Rights (DOE 13 OCR) will not change.

    Substantially Limits

    We do not believe that the courts have correctly instituted the level of coverage we intended to establish with the term “substantially limits” in the ADA. In particular, we believe that the level

    of limitation, and the intensity of focus, applied by the Supreme Court in Toyota goes beyond

    what we believe is the appropriate standard to create coverage under this law.

    We have extensively deliberated with regard to whether a new term, other than the term “substantially limits” should be used in this Act. For example, in its ADA Amendments Act,

    H.R.3195, the House of Representatives attempted to accomplish this goal by stating that the key phrase “substantially limits” means “materially restricts” in order to convey that Congress

    intended to depart from the strict and demanding standard applied by the Supreme Court in 14Sutton and Toyota.

     13 28 CFR ?36.104; 29 CFR ?1630.2(h) (1)-(2); 34 CFR ?104.3(j)(2)(i). 14 We have chosen not to adopt the House's term 'materially restricts' or the House Committees' use of a range or spectrum of severity to define 'materially restricts' because we are concerned both by the lack of clarity in the terms “material” “moderate” and “severe” and because we believe that such terms encourage the courts to engage in an inappropriate level of scrutiny as to the severity of an impairment when determining whether an individual has a disability.


    We have concluded that adopting a new, undefined term that is subject to widely disparate meanings is not the best way to achieve the goal of ensuring consistent and appropriately broad coverage under this Act. The resulting need for further judicial scrutiny and construction will not help move the focus from the threshold issue of disability to the primary issue of discrimination.

We believe that a better way is to express our disapproval of Sutton and Toyota (along with the

    current EEOC regulation) is to retain the words “substantially limits,” but clarify that it is not

    meant to be a demanding standard. In addition, we believe eliminating the source of the Supreme Court’s decisions narrowing the definition and providing more appropriate findings and purposes for properly construing that definition will accomplish our goal without introducing novel statutory terms.

    We believe that the manner in which we understood the intended scope of “substantially limits” in 1990 continues to capture our sense of the appropriate level of coverage under this law for purposes of placing on employers and other covered entities the obligation of providing reasonable accommodations and modifications to individuals with impairments. As we described this in our committee report to the original ADA in 1989:

    A person is considered an individual with a disability for purposes of the first prong of

    the definition when [one or more of] the individual's important life activities are restricted

    as to the conditions, manner, or duration under which they can be performed in

    comparison to most people. A person who can walk for 10 miles continuously is not

    substantially limited in walking merely because on the eleventh mile, he or she begins to

    experience pain because most people would not be able to walk eleven miles without

    experiencing some discomfort. S. Rep. No 101-116, at 23 (1989).

    We particularly believe that this test, which articulated an analysis that considered whether a person’s activities are limited in condition, duration and manner, is a useful one. We reiterate that using the correct standard one that is lower than the strict or demanding standard created by the Supreme Court in Toyota -- will make the disability determination an appropriate

    threshold issue but not an onerous burden for those seeking accommodations or modifications. At the same time, plaintiffs should not be constrained from offering evidence needed to establish 15 that their impairment is substantially limiting.

Thus, we believe that the term “substantially limits” as construed consistently with the findings

    and purposes of this legislation establishes an appropriate functionality test for determining whether an individual has a disability.

    Major Life Activities

    The bill provides significant new guidance and clarification on the subject of major life activities. First, a rule of construction clarifies that that an impairment need only substantially limit one major life activity to be considered a disability under the ADA. This responds to and corrects those courts that have required individuals to show that an impairment substantially limits more

     15 Under the first prong, of course, a plaintiff must still provide evidence that that his or her impairment is substantially limiting.


    than one life activity. It is additionally intended to clarify that the ability to perform one or more particular tasks within a broad category of activities does not preclude coverage under the 16 ADA.

    For purposes of clarity, the bill provides an illustrative list of “major life activities including

    activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. In addition, for the first time, the category of “major life

    activities” is defined to include the operation of major bodily functions, thus better addressing chronic impairments that can be substantially limiting. Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, 17respiratory, circulatory, endocrine and reproductive functions.

    Both the list of major life activities and major bodily functions are illustrative and non-exhaustive, and the absence of a particular life activity or bodily function from the list does not create a negative implication as to whether such activity or function constitutes a “major life

    activity” under the statute.

    Finally, we also want to illuminate one area which may be easily misunderstood, with respect to individuals with specific learning disabilities. When considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.

    Rules of Construction on the Definition of Disability

    The bill further clarifies the definition of disability with a series of rules of construction. As discussed elsewhere, the rules of construction specifically require that the definition of disability be interpreted broadly and that the term “substantially limits” be interpreted consistent with this legislation. This construction is also intended to reinforce the general rule that civil rights statutes must be broadly construed to achieve their remedial purpose. In addition, the rules of

16th See Holt v. Grand Lake Mental Health Center, Inc., 443 F. 3d 762 (10 Cir. 2006) holding an individual with

    cerebral palsy who could not independently perform certain specified manual tasks was not substantially limited in her ability to perform a “broad range” of manual tasks.

     17 We expect that this illustrative list of major life activities (including major bodily functions), in combination with the rejection of both the “demanding standard” in Toyota and the consideration of mitigating measure in the Sutton

    trilogy will make it easier for individuals to show that they are eligible for the ADA’s protections under the first prong of the definition of disability. While it is impossible to predict the type of cases that will be brought following passage of this bill, we would expect that the bill will make it easier for individuals in cases like the following to thqualify for the protections of the ADA Littleton v. Wal-Mart Stores, Inc, 231 Fed. Appx. 874 (11 Cir. 2007)

    (individual with intellectual disability); Furnish v. SVI Syst., Inc., 270 F. 3d 445, 450 (7th Cir. 2001) (person with

    cirrhosis of the liver caused by Hepatitis B); and Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177

    (D.N.H. 2002) (individual with advanced breast cancer).


    construction provide that impairments that are episodic or in remission be assessed in their active state for purposes of determining coverage under the ADA.

    Mitigating Measures

    The bill also prohibits consideration of the ameliorative effects of mitigating measures when determining whether an individual's impairment substantially limits major life activities, overturning the Supreme Court's decision in Sutton and its companion cases. This provision is

    intended to eliminate the situation created under current law in which impairments that are mitigated do not constitute disabilities but are the basis for discrimination. We expect that when such mitigating measures are ignored, some individuals previously found not disabled will now be able to claim the ADA’s protection against discrimination.

    The legislation provides an illustrative but non-comprehensive list of the types of mitigating measures that are not to be considered. This list also includes 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. The absence of any particular mitigating measure from this list should not convey a negative implication as to whether the measure is a mitigating measure under the ADA.

    We also believe 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 accommodations (including informal or undocumented ones) that have the effect of lessening the deleterious impacts of their disability.

    The bill provides one exception to the rule on mitigating measures, specifying that ordinary eyeglasses and contact lenses are to be considered in determining whether a person has a

    disability. The rationale behind this exception is that the use of ordinary eyeglasses or contact lenses, without more, is not significant enough to warrant protection under the ADA. Nevertheless, if an applicant or employee is faced with a qualification standard that requires uncorrected vision (as the sisters in the Sutton case were), an employer will be required to

    demonstrate that the qualification standard is job-related and consistent with business necessity.

    Regarded As

    Under this bill, the third prong of the disability definition will apply to impairments, not only to disabilities. As such, it does not require a functional test to determine whether an impairment substantially limits a major life activity.

    This section of the definition of disability was meant to express our understanding that unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and our corresponding desire to prohibit discrimination founded on such perceptions. In 1990 we relied extensively on the reasoning of School Board of 18Nassau County v. Arline that the negative reactions of others are just as disabling as the actual

     18 480 U.S. 273(1987).


    impact of an impairment. This legislation restates our reliance on the broad views enunciated in that decision and we believe that courts should continue to rely on this standard. We intend and believe that the fact that an individual was discriminated against because of a perceived or actual impairment is sufficient. Thus, the bill clarifies that contrary to Sutton, an

    individual who is regarded as having such an impairment” is not subject to a functional test. If

    an individual establishes that he or she was subjected to an action prohibited by the ADA because of an actual or perceived impairment whether the person actually has the impairment

    or whether the impairment constitutes a disability then the individual will qualify for protection

    under the Act.

    This provision is subject to two important limitations. First, individuals with impairments that are transitory and minor are excluded from eligibility for the protections of the ADA under this prong of the definition, and second, the bill relieves entities covered under the ADA from the obligation and responsibility to provide reasonable accommodations and reasonable modifications to an individual who qualifies for coverage under the ADA solely by being “regarded as” disabled.

    Transitory and Minor

    The bill contains an exception that clarifies that coverage for individuals under the regarded as

    prong is not available where an individual’s impairment is both transitory (six months or less)

    and minor. Providing this exception responds to concerns raised by employer organizations and is reasonable under the regarded as prong of the definition because individuals seeking

    coverage under this prong need not meet the functional limitation requirement contained in the first two prongs of the definition. A similar exception for the first two prongs of the definition is unnecessary as the functional limitation requirement already excludes claims by individuals with ailments that are minor and short term.


    The bill establishes that entities covered under the ADA do not need to provide reasonable accommodations under Title I or modify policies, practices, or procedures under Titles II or III when an individual qualifies for coverage under the ADA solely by being regarded as having a

    disability under the third prong of the definition of disability.

Under current law, a number of courts have required employers to provide reasonable 19accommodations for individuals who are covered solely under the “regarded as” prong. In

     19 The following courts have held that the ADA requires that reasonable accommodations be provided to individuals who are able to establish coverage under the ADA under the “regarded as” prong of the definition of disability: Kelly v. Metallics West, Inc., 410 F.3d 670 (10th Cir. 2005) (plaintiff needed oxygen device to breathe); D'Angelo v.

    ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005) (plaintiff had vertigo resulting in spinning and vomiting); Williams v. Philadelphia Housing Auth. Police Dept, 380 F.3d 751 (3d Cir. 2004) (plaintiff had major depressive

    disorder); Lorinz v. Turner Const. Co., 2004 WL 1196699, * 8 n.7 (E.D.N.Y. May 25, 2004) (plaintiff had

    depressive disorder and anxiety); Miller v. Heritage Prod., Inc., 2004 WL 1087370, * 10 (S.D. Ind. Apr. 21, 2004)

    (plaintiff had back injury and could not lift more than 20 pounds, bend or twist); Jacques v. DiMarzio, Inc., 200 F.

    Supp.2d 151 (E.D.N.Y. 2002) (plaintiff had bipolar disorder); Jewell v. Reid’s Confectionary Co., 172 F. Supp.2d


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