ADA Amendments Act of 2008 Update - Senate Side
Following is the text of the Senate version of the ADA Amendments Act of 2008 (S. 3406), introduced on July 31, 2008. (As you’ll recall, with the help of grassroots advocates, the House version passed overwhelmingly.) This bill would explicitly apply to Section 504, so that students with disabilities as well as employees with disabilities would enjoy increased legal protections. The Senate bill, like the House bill, enjoys broad bipartisan support.
At the end of this post is also the press release accompanying the release of bill language.
Much thanks to COPAA (Council of Parent Attorneys & Advocates: http://www.copaa.org) for the timely provision of this information! (I’m a bit late getting this out due to vacation.)
S. 3406, ADA AMENDMENTS ACT OF 2008
as introduced, July 31, 2008
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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 a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases 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;
(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA;
(6) 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;
(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term ``substantially limits'' to require a greater degree of limitation than was intended by Congress; and
(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term ``substantially limits'' as ``significantly restricted'' are inconsistent with congressional intent, by expressing too high a standard.
(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 Air Lines, 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 Air Lines, 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'';
(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for ``substantially limits'', and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis; and
(6) to express Congress' expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term ``substantially limits'' as ``significantly restricted'' to be consistent with this Act, including the amendments made by this Act.
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;'';
(2) by striking paragraph (7); and
(3) by redesignating paragraphs (8) and (9) as paragraphs (7) and (8), respectively.
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 (3)).
``(2) 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.
``(3) 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.
``(4) RULES OF CONSTRUCTION REGARDING THE DEFINITION OF DISABILITY.--The definition of `disability' in paragraph (1) shall be construed in accordance with the following:
``(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.
``(B) The term `substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.
``(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
``(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
``(E)(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 of the United States, 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. 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:
SEC. 6. RULES OF CONSTRUCTION.
(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) 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) Fundamental Alteration.--Nothing in this Act alters the provision of section 302(b)(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.
``(g) Claims of No Disability.--Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.
``(h) 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) of such section.'';
(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 of disability in section 3 (including rules of construction) and the definitions in section 4, consistent with the ADA Amendments Act of 2008.''; and
(3) in section 511 (as redesignated by paragraph (2)) (42 U.S.C. 12211), in subsection (c), by striking ``511(b)(3)'' and inserting ``512(b)(3)''.
(b) The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by redesignating the items relating to sections 506 through 514 as the items relating to 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 (42 U.S.C. 12102)''; 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 (42 U.S.C. 12102).''.
SEC. 8. EFFECTIVE DATE.
This Act and the amendments made by this Act shall become effective on January 1, 2009.
ADA Amendments Act Responds To Supreme Court Decisions that Wrongly Narrowed Definition of Disabilitiy
WASHINGTON, D.C. – One week after the 18th anniversary of the signing of the Americans with Disabilities Act (ADA) into law, Senators Tom Harkin (D-IA) and Orrin Hatch (R-UT) introduced legislation last night that would clarify the law’s intent and ensure that all Americans with disabilities are protected from discrimination.
The ADA Amendments Act, S. 3406, is co-sponsored by Senators Kennedy, Enzi, Specter, Obama, McCain, Dodd, Gregg, Clinton, Alexander, Johnson, Roberts, Kerry, Coleman, Feingold, Snowe, Leahy, Dole, Burr, Brown, Smith, Durbin, Murkowski, Lautenberg, Warner, Sanders, Brownback, Reed, Martinez, Mikulski, Isakson, Casey, Craig, Murray, Bennett, Landrieu, Collins, Biden, Allard, Nelson, Sununu, Cardin, Thune, Levin, Barrasso, McCaskill, Crapo, Schumer, Stevens, Salazar, Voinovich, Tester, Cochran, Reid, Luger, Chambliss, Boxer, Feinstein, Klobuchar, Stabenow, Kohl, Lincoln, Menendez, and Wyden.
The bill is similar to bipartisan legislation introduced in the House by Majority Leader Steny Hoyer and Congressman Jim Sensenbrenner. That bill passed by a 402-17 margin last month.
Considered to be one of the landmark civil rights laws of the 20th century, the ADA was designed to protect any individual who is discriminated against on the basis of disability. The law was passed with overwhelming bipartisan support and was signed into law by President George H.W. Bush.
Since the ADA became law, a series of court decisions have unduly narrowed the category of who qualifies as an “individual with a disability,” contrary to Congressional intent. By raising the threshold for an impairment to qualify as a disability, these court decisions have deprived individuals of the discrimination protections Congress intended to provide.
The ADA Amendments Act would remedy this problem and restore workplace protections to every American with a disability. The bill leaves the ADA’s familiar disability definition intact, but takes several specific steps to direct courts toward a more generous meaning and application of the definition. The legislation would make it easier for people with disabilities to be covered by the ADA because it effectively expands the definition of disability to include many more major life activities, as well as a new category of major bodily functions.
“Just like the bi-partisan passage of the original ADA, this bill has been conceived and crafted in a spirit of genuine bipartisanship – members of both parties coming together to do the right thing for Americans with disabilities,” said Harkin. “The erosions of rights created by these court cases have created a bizarre catch-22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected. That is not what Congress intended when we passed the law, and this bill is the right fix.”
Hatch, who played a critical role in the development and passage of the original ADA, said: “Working with my good friend Tom Harkin, who has been a tireless advocate on behalf of the disabled, we were able to craft a strong bipartisan bill, which is a landmark piece of legislation that will ensure the disabled share in the American dream.
“This is a monumental bill that people from across the political spectrum can wholeheartedly endorse.” Hatch added. “It strikes an appropriate balance in broadening and safeguarding ADA protections for our disabled fellow Americans without introducing provisions that courts could once again misconstrue. It further safeguards institutions of higher learning from being forced to compromise academic standards.”Sandy, Illinois (alpy2@...)
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