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

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



 
                       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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

         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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \8\480 U.S. 273, 285 (1978).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\Id. (original emphasis).
    \10\Id.
    \11\Id.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \15\Id., pt. 3, at 30 (citing Arline, 480 U.S. at 283).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
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    \3\534 U.S. 184, 198 (2002).
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    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.