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**University of the District of Columbia**

**DAVID A. CLARKE School of Law**

4200 Connecticut Avenue, N.W.

Building 38, 2nd Floor

Washington, D.C. 20008

**TESTIMONY**

**to the**

**COMMITTEE ON EDUCATION AND LABOR**

**of the**

**UNITED STATES HOUSE OF REPRESENTATIVES**

**HEARING ON H.R. 3195**

**"ADA RESTORATION ACT OF 2007"**

**Witness:**

**ROBERT L. BURGDORF JR.**

**Professor of Law**

**University of the District of Columbia**

**David A. Clarke School of Law**

**Tuesday, January 29, 2008**

**INTRODUCTION**

In November 1989, the Committee on Education and Labor, by a vote of
35-0, approved and reported out the Americans with Disabilities Act
(ADA). The Committee's action was a significant step in the process by
which Congress and the George H.W. Bush Administration realized the
momentous and long-needed objective of according people with
disabilities protection from discrimination -- the right to be treated
equally and to challenge unfair treatment against them -- by enacting
the ADA. In this legislation, the two elected branches of government
made a compact with the American people that America would no longer
tolerate discrimination on the basis of disability, and if people
encountered such discrimination they could challenge it in court.
Unfortunately, the judiciary -- the unelected branch -- has largely
taken away protection of the ADA and access to the courts to enforce it
by drastically and aggressively limiting the coverage of the ADA. Today,
large numbers of people with disabilities around the country find that
they no longer have the rights the Congress and the President gave them.

I have been working on a law review article addressing discrimination
against people with cancer; in doing research for that article, I found
considerable statistical and anecdotal information documenting serious
discrimination directed at people who currently have cancer and those
who have previously been treated for cancer. Estimates of the prevalence
of such discrimination in the workplace vary all over the board, from 5%
to 90%, but considering that over 10 million people living in the United
States currently have cancer or have been treated for cancer, including
over two million who have been treated for breast cancer, and that about
40% of them are of working age, even the most conservative estimates
mean that hundreds of thousands of Americans with cancer or a history of
cancer have been discriminated against by their employers.

Many workers facing such discrimination have sought to assert their
rights under the ADA. All too often, however, the courts' restrictive
interpretations of the Act's coverage have resulted in judicial rulings
that a worker's cancer is not a disability, much to the sad surprise of
those who drafted and enacted the legislation. This means that hundreds
of thousands of people who have had to battle a life-threatening disease
and then encountered unfair and unnecessary discrimination may have no
recourse under a law that was manifestly intended to protect them. Even
those who do manage to satisfy the stringent criteria for disability can
only do so by making obviously off-the-point and often embarrassing and
painful showings of how their sexual activities or ability to perform
personal self care or other unrelated activities are severely limited.

The article I am working on focuses on cancer, but the same situation
applies to many, perhaps most, other types of disabilities. Even a
cursory review of the cases decided under the ADA reveals a plethora of
court decisions in which people with conditions everyone thought were
covered under the law when it was enacted have had their lawsuits thrown
out of court based on technical, harshly narrow interpretations of what
a "disability" is. To provide a small, but representative, sampling of
such cases, I have attached a list of decisions in which plaintiffs with
significant impairments were unable to convince a court that their
conditions constituted disabilities under the ADA as Appendix A to this
testimony. Statistical studies pretty consistently indicate that
complainants prevail in fewer than one-out-of-ten ADA Title I
(employment) complaints. One of the studies found that courts ruled that
the plaintiff had a disability in only six percent of the cases.[^1]
Ludicrously, employers who take drastic steps, such as termination or
demotion, against employees because of their conditions can successfully
contend that the conditions are not serious enough to constitute a
disability.

For these reasons, it is both an honor and a solemn responsibility for
me to have this opportunity to submit comments to the Committee. I am
pleased to be a part of this panel of distinguished witnesses, including
Andrew Imparato whom I have worked with and admired for many years. In
my 19 years as Professor of Law at the University of the District of
Columbia, David A. Clarke School of Law, I initially taught the School's
Constitutional Law courses, and for many years now have directed a
clinical program in legislation -- the Legislation Clinic. For over 35
years, however, my particular area of legal research and expertise has
been the rights of people with disabilities. During my career, I have
had the good fortune to be presented with some wonderful opportunities
to contribute to the advancement of such rights. Chief among these was
working for the National Council on Disability during the Administration
of George H.W. Bush to develop the concept of an Americans with
Disabilities Act (ADA) and then to craft the Council's original version
of the ADA. This is the version that Representative Tony Coelho and
Senator Lowell Weicker had the vision and valor to introduce in the
100^th^ Congress in 1988.

I subsequently worked with Members of Congress and their staffs, legal
experts, and representatives of affected industries to revise the ADA
bill for introduction in the 101st Congress in 1989. After the ADA was
enacted in 1990, I had the opportunity to do some scholarly writing,
including a hefty legal treatise and several law review articles, that
discussed the provisions of the ADA and the court decisions that started
to arise under it. I also had occasion to continue to work with the
National Council on Disability (NCD) in monitoring the case law and
federal enforcement efforts regarding the ADA. At the Council's request,
I developed a summary of the Supreme Court's ADA decisions and their
implications that is posted on the NCD website at

http://www.ncd.gov/newsroom/publications/2002/supremecourt_ada.htm.

During the Administration of George W. Bush, NCD focused on the
digression of some of the Supreme Court's decisions from the intent and
spirit of the ADA, and decided to undertake an in-depth study of the
impact of these decisions, consistent with NCD's statutory obligation to
"gather information about the implementation, effectiveness, and impact
of the Americans with Disabilities Act of 1990."[^2] The Council
commissioned a series of policy documents discussing specific topics
raised by problematic Supreme Court ADA decisions; 19 such topic papers
have been issued to date. They are posted on the NCD website under the
title Policy Brief Series: Righting the ADA Papers at
http://www.ncd.gov/newsroom/publications/2003/policybrief.htm.

Based upon information uncovered in the development of these topic
papers, NCD became convinced that corrective legislative action is
called for, and accorded me the high honor of asking me to pull together
the various strands and issues discussed in the individual topic papers
and to draft a unified legislative proposal for getting the ADA back on
track. The result, a report titled *Righting the ADA*, was issued in
December of 2004. It provides an analysis of problematic Court rulings,
describes the resulting impact on people with disabilities, and offers
legislative proposals designed to restore the ADA to its original
intent. Out of various legislative proposals discussed in the report,
NCD chose to consolidate its preferred solutions to the problems created
by judicial misinterpretation of the ADA into a single draft bill -- the
ADA Restoration Act.

NCD has sent copies of the *Righting the ADA* report to Congress,
additional copies are available from the National Council, and the
report is posted on the NCD website at
http://www.ncd.gov/newsroom/publications/2004/righting_ada.htm. For
convenience, however, I am including as the final section of my
observations the Executive Summary of the *Righting the ADA* report,
which includes a Section-by-Section Summary and the text of the
Council's ADA Restoration Act proposal. I will only add a caution that
the full text of the report contains considerable materials clarifying,
explaining, and amplifying the impact of the ADA decisions of the
Supreme Court and I strongly advise those interested in the proposals to
read the full rationale that supports them. A considerable portion of my
testimony is derived more or less directly from the *Righting the ADA*
report, the series of topic papers that led up to it, and other NCD
reports that I helped develop.

In my testimony, I will describe some of the background of the enactment
of the ADA and the positive impacts that it has had. I will then discuss
some of the problematic judicial decisions, particularly those of the
United States Supreme Court, that have inhibited the achievement of some
the legislation's central objectives, including the unexpected
restrictive court interpretations of the definition of "disability" in
the Act. My testimony will outline how the courts have missed the boat
as to some of the central premises of the ADA. I will summarize the
efforts of the National Council on Disability to get the ADA back on
track, culminating in its *Righting the ADA* report that contained an
ADA Restoration Act proposal. Finally, I will examine H.R. 3195, derived
in part from the NCD proposal, and discuss the extent to which it
achieves the goal of undoing the damage done by judicial restrictions on
the coverage of the ADA.

**BROAD BIPARTISAN SUPPORT**

President George H.W. Bush called July 26, 1990, "an incredible day...an
immensely important day," for on that date he signed into law the
Americans with Disabilities Act (ADA). In his remarks at the signing
ceremony, the President described the Act as an "historic new civil
rights Act, \... the world's first comprehensive declaration of equality
for people with disabilities." He added that "\[w\]ith today's signing
of the landmark Americans with Disabilities Act, every man, woman, and
child with a disability can now pass through once-closed doors into a
bright new era of equality, independence and freedom." He also noted
that "my administration and the Congress have carefully crafted this
Act."

A rarity about the ADA was that it was an important piece of legislation
that almost everyone supported. The votes in Congress to pass the ADA
were overwhelmingly in favor of passage. The Senate passed its version
of the ADA bill by a vote of 76 to 8; the House of Representatives
passed its bill 403 to 20. After differences were ironed out in
conference, the House approved the final version of the bill by a vote
of 377 to 28, and the Senate followed suit, adopting the final ADA bill
by the lopsided margin of 91 to 6. Congressional committees that
considered the ADA were equally united in their backing of the
legislation. Two of the five committees---the Senate Labor and Human
Resources Committee and the House Committee on Education and
Labor---adopted ADA bills unanimously. The Subcommittee on Civil and
Constitutional Rights favorably reported the bill by a recorded vote of
7-1, and the House Judiciary Committee followed suit by a recorded vote
of 32-3. None of the formal up-or-down committee votes on reporting out
the ADA, nor any of the floor votes on passage of the legislation, had
less than a 90 percent majority in favor of the ADA bills.

Such overwhelming approval of a measure---with at least 9 out of 10
voting for it---obviously can occur only if it has both Republican and
Democratic support. The ADA originated, as Senator Robert Dole, the
Senate minority leader emphasized, "with an initiative of the National
Council on Disability, an independent federal body composed of 15
members appointed by President Reagan and charged with reviewing all
laws, programs, and policies of the Federal Government affecting
individuals with disabilities." Proposed by Reagan appointees, initially
sponsored by a Republican in the Senate (Senator Lowell Weicker) and a
Democrat in the House of Representatives (Representative Tony Coelho),
passed by a Democrat-controlled Senate and House of Representatives, and
supported and signed by President George H.W. Bush, the ADA was a model
of bipartisanship.

Before the ADA was reintroduced in the 101st Congress, ADA advocates in
Congress determined that, to pass an effective and enforceable law, they
needed the support of the administration and members of Congress from
both major political parties. As Congressman Coelho would later report,
"If it had become a Democratic bill, \[the ADA\] would have lost\....
It had to be bipartisan." As the ADA passed the Senate, Senator Dole
called it "a good example of bipartisanship in action." Likewise,
President George H.W. Bush credited the success of the ADA to the fact
that members of Congress, "on both sides of the political aisle" agreed
to "put politics aside" to "do something decent, something right." He
credited the ADA's passage to "a coalition in the finest spirit. A
joining of Democrats and Republicans. Of the Legislative and the
Executive Branches. Of federal and state agencies. Of public officials
and private citizens. Of people with disabilities and without."

Members of both political parties participated in cooperative meetings
to craft compromise provisions and revise problematic language in the
bills. Republican Representative Steve Bartlett described meetings with
the leading House advocate for the ADA, Democrat Steny Hoyer, as "the
most productive and satisfying legislative negotiations that I had ever
been involved with."

In addition to congressional dialogue and bargaining, a key factor in
obtaining bipartisan backing and ultimately passing the ADA was the
unwavering support for the legislation by President George H.W. Bush and
his administration. While he was Vice President, Mr. Bush had pledged
that he would promote a civil rights act for people with disabilities.
Two days before his inauguration as President, Mr. Bush declared, "I
said during the campaign that disabled people have been excluded for far
too long from the mainstream of American life. \... One step that I have
discussed will be action on the Americans with Disabilities Act in
order, in simple fairness, to provide the disabled with the same rights
afforded others, afforded other minorities." Early in the Senate
hearings on the ADA, Senator Tom Harkin, a Democrat, made a remarkable
statement crediting President George H.W. Bush's public remarks in favor
of rights for people with disabilities:

> \[W\]e have had strong, strong statements made by President Bush---no
> President of the United States, Republican or Democrat, has ever said
> the things about disabled Americans that George Bush has said. No
> President, including the President who was in a wheelchair, Franklin
> Roosevelt.

Senator Harkin concluded that "this bodes well" and meant that "we can
work together with the administration, \[on\] both sides of the
aisle\..." on the ADA.

Attorney General Dick Thornburgh formally announced the Bush
administration's support for the ADA during Senate hearings on the
legislation. He declared, "\[w\]e at the Justice Department
wholeheartedly share \[the ADA's\] goals and commit ourselves, along
with the President and the rest of his administration to a bipartisan
effort to enact comprehensive legislation attacking discrimination in
employment, public services, transportation, public accommodations, and
telecommunications." He added, in regard to the ADA bill, that "\[o\]ne
of its most impressive strengths is its comprehensive character" that
was consistent with President George H.W. Bush's commitment to ensuring
people with disabilities' "full participation in and access to all
aspects of society." After Administration and Senate advocates ironed
out differences on specific provisions, the Administration's express
endorsement of the legislation led to a unanimous Senate Committee vote
to report the bill out of committee, and to more than 60 Senators
signing on as cosponsors. It also set the stage for favorable House
action and final passage of the ADA.

As the ADA passed the Senate, Senator Dole praised President George H.W.
Bush for his leadership on the legislation, and declared that "\[w\]e
would not be here today without the support of the President." The
senator credited a list of administration officials, including Chief of
Staff John Sununu and Attorney General Dick Thornburgh, whose efforts
contributed to the passage of the ADA. He also appended to his remarks a
*New York Times* opinion-editorial piece about the ADA written by James
S. Brady, who had been President Reagan's Press Secretary. Mr. Brady
wrote:

> As a Republican and a fiscal conservative, I am proud that this bill
> was developed by 15 Republicans appointed to the National Council on
> Disability by President Reagan. Many years ago, a Republican
> President, Dwight D. Eisenhower, urged that people with disabilities
> become taxpayers and consumers instead of being dependent upon costly
> federal benefits. The \[ ADA\] grows out of that conservative
> philosophy.

NCD has observed:

> More than any other single player, the role of President Bush cannot
> be overestimated. The ADA would have made little headway were it not
> for the early and consistent support from the nation's highest office.
> \...The president's support brought people to the table to work out a
> bipartisan compromise bill that could obtain the support of the
> business community as well as that of the disability community.[^3]

Acclaim for the ADA came from many other sources. Senator Dole called
the ADA "landmark legislation" that would "bring quality to the lives of
millions of Americans who have not had quality in the past." Senator
Hatch declared the ADA was "historic legislation" whose passage was "a
major achievement" demonstrating that "in this great country of freedom,
\... we will go to the farthest lengths to make sure that everyone has
equality and that everyone has a chance in this society." The executive
director of the Leadership Conference on Civil Rights described the ADA
as "the most comprehensive civil rights measure in the past
two-and-a-half decades." Senator Edward M. Kennedy termed the
legislation a "bill of rights" and "an emancipation proclamation" for
people with disabilities. The late Justin Dart, who occupied disability
policy positions in the Reagan, Bush, and Clinton administrations,
called the ADA "a landmark commandment of fundamental human morality."

**BACKING BY SUBSEQUENT PRESIDENTS**

In 2000, President Bill Clinton proclaimed July as "The Spirit of the
ADA Month" and declared:

> The enactment of the Americans with Disabilities Act 10 years ago this
> month signaled a transformation in our Nation's public policies toward
> people with disabilities. America is now a dramatically
> different---and better---country because of the ADA.

In addition to citing past accomplishments and pending initiatives his
administration was pursuing to further the implementation of the ADA,
President Clinton added, "Vice President Gore and I are proud to join in
the celebration and to renew our own pledge to help advance the cause of
disability rights." For his part, Vice President Al Gore observed, "We
know we can't just pass a few laws and change attitudes overnight. But
day by day, person by person, we can make a difference. Together, let's
not just complete the work of the ADA---let's say to the whole world:
this is one country that knows we don't have a person to waste, and
we're moving into the next century---together."[^4]

Bipartisan support and presidential commitment to the ADA have
continued. President George W. Bush endorsed the Act and, in February
2001, issued his "New Freedom Initiative," committing his administration
to ensuring the rights and inclusion of people with disabilities in all
aspects of American life. On June 18, 2001, President Bush issued
Executive Order No. 13217, declaring the commitment of the United States
to community-based alternatives for individuals with disabilities. On
the twelfth anniversary of the signing of the ADA, July 26, 2002, the
President proclaimed the ADA to be "one of the most compassionate and
successful civil rights laws in American history."[^5] The White House
also declared that "\[t\]he administration is committed to the full
enforcement of the Americans with Disabilities Act." President Bush
asserted a clear continuity between his commitment to the ADA and that
of his father:

> \[W\]hen my father signed the ADA into law in 1990, he said, "We must
> not and will not rest until every man and woman with a dream has the
> means to achieve it." Today we renew that commitment, and we continue
> to work for an America where individuals are celebrated for their
> abilities, not judged by their disabilities.

**WILL OF THE PEOPLE**

In enacting the ADA and in seeking its vigorous enforcement, the elected
branches of the Federal Government---the Congress and the
President---have carried out the will of the American people. A large
majority of the public reports that it favors the ADA. A 2002 Harris
Poll found that, of the 77 percent of Americans who said they were aware
of the ADA, an overwhelming percentage (93 percent) reported that they
"approve of and support it." The ADA is supported by most of the
business sector. A Harris Poll of business executives in 1995, for
example, showed that 90 percent of the executives surveyed said that
they supported the ADA.

In the face of negative media reports on the ADA (often misleading and
sometimes flatly inaccurate), most Americans are still highly favorably
disposed to the Act. They have had experience with the realities of the
ADA in their communities and workplaces, and have seen how people have
benefited from it. They have noticed people with visible disabilities at
stores, malls, theaters, stadiums, and museums. They have seen the
ramps, accessible bathrooms, disabled parking spaces, and other
accessibility features that the ADA has engendered. They encounter
people who use wheelchairs now able to go to department stores, fast
food places, and government offices. They know that the son of their
neighbors is now living comfortably in an apartment in the neighborhood
with appropriate support services instead of in an institutional
setting. They are aware that sign language interpreters now are
routinely present at their county council meetings. In these and
countless other ways, they have seen the ADA in action, and they
approve.

**IMPACT OF THE ADA**

In a variety of ways, the ADA has lived up to the high hopes that
accompanied its passage. The provisions of the ADA that address
architectural, transportation, and communication accessibility have
changed the face of American society in numerous concrete ways. A vast
number of buildings and other structures have been affected by
provisions of the ADA that make it illegal to design or construct any
new place of public accommodation or other commercial facility without
making it readily accessible to and usable by people with disabilities,
or to alter such a facility without incorporating accessibility
features. The ADA's mass transit provisions ended decades
of disagreements and controversy regarding many of the issues that
determined exactly what is required of public transportation systems to
avoid discriminating on the basis of disability. The ADA contains
detailed provisions describing requirements for operators of bus, rail,
and other public transportation systems, and intercity and commuter rail
systems. Although implementation has been far from perfect and ADA
provisions do not answer all the questions, much progress in
transportation accessibility has been made. The ADA's employment
provisions have dramatically affected hiring practices by barring
invasive preemployment questionnaires and disability inquiries and the
misuse of preemployment physical information. These provisions also have
made job accommodations for workers with disabilities more common than
they were before the ADA was enacted. The ADA's telecommunications
provisions have resulted in the establishment of a nationwide system of
relay services, which permit the use of telephone services by those with
hearing or speech impairments, and a closed captioning requirement for
the verbal content of all federally funded television public service
announcements.

Other provisions of Title II of the ADA (covering state and local
governments) and Title III (covering public accommodations) have
eliminated many discriminatory practices by private businesses and
government agencies. The ADA has had a particularly strong impact in
promoting the development of community residential, treatment, and care
services in lieu of unnecessarily segregated large state institutions
and nursing homes. The Act provided the impetus for President George W.
Bush's "New Freedom Initiative," issued in February 2001, committing his
administration to assuring the rights and inclusion of people with
disabilities in all aspects of American life; and for Executive Order
No. 13217, issued on June 18, 2001, declaring the commitment of the
United States to community-based alternatives for people with
disabilities.

At the ADA signing ceremony, the first President Bush declared that
other countries, including Sweden, Japan, the Soviet Union, and each of
the 12 member nations of the European Economic Community, had announced
their desire to enact similar legislation. In the years since its
enactment, numerous other countries have been inspired by the ADA to
seek legislation in their own jurisdictions to prohibit discrimination
on the basis of disability. These countries have looked to the ADA, if
not as a model, at least as a touchstone in crafting their own
legislative proposals.

In 1988, while the original ADA bills were pending before Congress, the
Presidential Commission on the Human Immunodeficiency Virus (HIV)
Epidemic endorsed the legislation and recommended that the ADA should
serve as a vehicle for protecting from discrimination people with HIV
infection. The ADA has proved to be the principal civil rights law
protecting people with HIV from the sometimes egregious discriminatory
actions directed at them.

In a broader sense, the ADA has, as the Council has observed in a report
issued in 2000, "begun to transform the social fabric of our nation":

> It has brought the principle of disability civil rights into the
> mainstream of public policy. The law, coupled with the disability
> rights movement that produced a climate where such legislation could
> be enacted, has impacted fundamentally the way Americans perceive
> disability. The placement of disability discrimination on a par with
> race or gender discrimination exposed the common experiences
> of prejudice and segregation and provided clear rationale for the
> elimination of disability discrimination in this country. The ADA has
> become a symbol, internationally, of the promise of human and civil
> rights, and a blueprint for policy development in other countries. It
> has changed permanently the architectural and telecommunications
> landscape of the United States. It has created increased recognition
> and understanding of the manner in which the physical and social
> environment can pose discriminatory barriers to people with
> disabilities. It is a vehicle through which people with disabilities
> have made their political influence felt, and it continues to be a
> unifying focus for the disability rights movement.[^6]

This is not to ignore the fact that there are huge gaps in enforcement
of the ADA's requirements or that some covered entities have taken an
I-won't-do-anything-until-I'm-sued attitude toward the obligations
imposed by the law. Indeed, the *Promises to Keep* report, from which
the preceding quotations were taken, described a variety of problems and
weaknesses in federal enforcement of the ADA and presented
recommendations for remedying such deficiencies.

Numerous people with disabilities, however, have declared that the ADA
has played an important role in improving their lives. In 1995, NCD
issued a report titled *Voices of Freedom: America Speaks Out on the
ADA*, in which it presented a large number of statements by individuals
with disabilities talking about the impact of the ADA. The following is
a tiny sampling of the thousands of statements NCD received:

> The ADA is fantastic. I can go out and participate. The ADA makes me
> feel like I'm one of the gang. (Sandra Brent, Arkansas)
>
> Even though we had the Rehab Act of 1973, it took the ADA to make real
> change. The ADA has given me hope, independence, and dignity. ( Yadi
> Mark, Louisiana)
>
> Because of the ADA, I have more of the opportunities that other people
> have. Now I feel like a participant in life, not a spectator. (Brenda
> Henry, Kansas)
>
> A successful person with a disability was once thought of as unusual.
> Now successful people with disabilities are the rule. It's the ADA
> that has opened the door. (Donna Smith-Whitty, Mississippi)[^7]

The report presented statements by people with disabilities about their
experiences with the ADA in various aspects of their lives, including
access to the physical environment, access to employment opportunities,
communication mobility, and self image. The report concluded that,

> ...the actual research data and the experiences of people with
> disabilities, of their family members, of businesses, and of public
> servants, \[demonstrates\] that this relatively new law has begun to
> move us rapidly toward a society in which all Americans can live,
> attend school, obtain employment, be a part of a family, and be a part
> of a community in spite of the presence of a disability. What is
> needed now is a renewed commitment to the goals of the Act (which were
> crafted under unprecedented bipartisan efforts), sufficient resources
> to support further education and training concerning the ADA, and
> effective enforcement.[^8]

In a similar vein, President George W. Bush declared the following in
2002:

> In the 12 years since President George H.W. Bush signed the ADA into
> law, more people with disabilities are participating fully in our
> society than ever before. As we mark this important anniversary, we
> celebrate the positive effect this landmark legislation has had upon
> our Nation, and we recognize the important influence it has had in
> improving employment opportunities, government services, public
> accommodations, transportation, and telecommunications for those with
> disabilities.
>
> Today, Americans with disabilities enjoy greatly improved access to
> countless facets of life; but more needs to be done. We must continue
> to build on the important foundations established by the ADA. Too many
> Americans with disabilities remain isolated, dependent, and deprived
> of the tools they need to enjoy all that our Nation has to offer.[^9]

**JUDICIAL RESISTANCE**

In light of the overwhelming endorsement of the ADA by Congress in
enacting it, by the Presidents in office at and since its enactment, and
by the majority of the general public, it is surprising and
disappointing that the judiciary all too often has given the Act the
cold shoulder. Problematic judicial interpretations have blunted the
Act's impact in significant ways. The National Council on Disability,
numerous legal commentators, and large numbers of people with
disabilities have become increasingly concerned about certain
interpretations and limitations placed on the ADA in decisions of the
U.S. Supreme Court.

This is not to suggest that all the rulings of the high court on the ADA
have been negative. Among favorable decisions, the U.S. Supreme Court
has (1) upheld the ADA's integration requirement and applied it to
prohibit unnecessary segregation of people receiving residential
services from the states; (2) held the ADA applicable to protect
prisoners in state penal systems; (3) held that the ADA prohibits
discrimination by a dentist against a person with HIV infection; (4)
ruled that the ADA required the PGA to allow a golfer with a mobility
impairment to use a golf cart in tournament play as a "reasonable
modification"; and ruled that the ADA protects the rights of people with
disabilities to have access to the courts. But while not all of the
Court's ADA decisions are objectionable, those that are have had a
serious negative impact. They have placed severe restrictions on the
class of persons protected by the ADA, have narrowed the remedies
available to complainants who successfully prove violations of the Act,
have expanded the defenses available to employers, and have even called
into question the very legality of some parts of the Act. NCD's policy
paper, *The Impact of the Supreme Court's ADA Decisions on the Rights of
Persons with Disabilities*, explores the effect such decisions have had
on individuals with disabilities. Paper No. 7 of NCD's *Policy Brief
Series: Righting the ADA Papers* can be found at\
<http://www.ncd.gov/newsroom/publications/2003/policybrief.htm>.

Media coverage of the Court's ADA decisions has made matters worse.
While such coverage has not been uniformly negative, a significant
portion of it has been misleading, presenting the Act in a highly
unfavorable light and placing a negative "spin" on the ADA, the court
decisions interpreting it, and its impact on American society. NCD's
extensive and detailed policy paper, *Negative Media Portrayals of the
ADA*, discusses prevalent media-fed myths about the ADA. Paper No. 5 of
NCD's *Policy Brief Series: Righting the ADA Papers* can be found at
<http://www.ncd.gov/newsroom/publications/2003/policybrief.htm>.

Inhibitive court decisions combined with harmful media perspectives have
caused the ADA to be the object of frequent misunderstanding, confusion,
and even derision. The detrimental pronouncements of the courts and
negative impressions of the ADA fostered by media mischaracterizations
have fed on one another and have generated increasing misunderstandings
of the Act's underlying purposes and vision, frustrated some of its
central aims, and narrowed the scope and degree of its influence.

**PROBLEMATIC INTERPRETATIONS OF THE ADA**

A.  **Surprising Problems with the Definition of Disability**

When Congress passed the ADA and President George H.W. Bush signed it
into law, hardly anyone expected trouble in the courts with the
definition of disability. Congress played it safe by adopting in the ADA
a definition of disability that was the same as the definition of
"handicap" under the Rehabilitation Act. That definition was enacted in
1974 and clarified in regulations issued under Section 504 of the
Rehabilitation Act. Because the definition was a broad and relatively
uncontroversial one, defendants seldom challenged plaintiffs' claims of
having a disability.[^10] In 1984, a federal district court noted that,
after 10 years' experience with the Rehabilitation Act definition, only
one court found a Section 504 plaintiff not to have a "handicap."[^11]

In 1987, the U.S. Supreme Court made it abundantly clear that the
definition of "handicap" under Section 504 was very broad. In *School
Board of Nassau County v. Arline*, the Court took an expansive and
nontechnical view of the definition. The Court found that Ms. Arline's
history of hospitalization for infectious tuberculosis was "more than
sufficient" to establish that she had "a record of" a disability under
Section 504 of the Rehabilitation Act. The Court made this ruling even
though her discharge from her job was not because of her
hospitalization. The Court displayed a lenient interpretation of what a
plaintiff needed to show to invoke the protection of the statute. It
noted that, in establishing the new definition of disability in 1974,
Congress had expanded the definition "so as to preclude discrimination
against '\[a\] person who has a record of, or is regarded as having, an
impairment \[but who\] may at present have no actual incapacity at
all.'"

The Court declared that the "basic purpose of Section 504" was to ensure
that individuals "are not denied jobs or other benefits because of the
prejudiced attitudes or the ignorance of others" or "reflexive reactions
to actual or perceived \[disabilities\]" and that the legislative
history of the definition of disability "demonstrates that Congress was
as concerned about the effect of an impairment on others as it was about
its effect on the individual." The Court elaborated as follows:

> Congress extended coverage \... to those individuals who are simply
> "regarded as having" a physical or mental impairment. The Senate
> Report provides as an example of a person who would be covered under
> this subsection "a person with some kind of visible physical
> impairment which in fact does not substantially limit that person's
> functioning." 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.

When Congress was considering the ADA, the Supreme Court's decision in
*School Board of Nassau County v. Arline* was the leading legal
precedent on the definition of disability. The *Arline* ruling was
expressly relied on in several ADA committee reports discussing the
definition of disability, including the report of the House Judiciary
Committee, which quoted the exact language of the Court as set out
above.[^12]

This was the legal background when Congress adopted the essentially
identical definition of disability in the ADA. To further ensure that
the definition of disability and other provisions of the ADA would not
receive restrictive interpretations, Congress included in the ADA a
provision requiring that "nothing" in the ADA was to "be construed to
apply a lesser standard" than is applied under the relevant sections of
the Rehabilitation Act, including Section 504, and the regulations
promulgating them. In his remarks at the ADA signing ceremony, President
George H.W. Bush pointed with pride to the ADA's "piggybacking" on
Rehabilitation Act language:

> The administration worked closely with the Congress to ensure that,
> wherever possible, existing language and standards from the
> Rehabilitation Act were incorporated into the ADA. The Rehabilitation
> Act standards are already familiar to large segments of the private
> sector that are either federal contractors or recipients of federal
> funds. Because the Rehabilitation Act was enacted 17 years ago, there
> is already an extensive body of law interpreting the requirements of
> that Act.

Accordingly, at the time of the ADA's enactment, it seemed clear that
most ADA plaintiffs would not find it particularly difficult to
establish that they had a disability. NCD issued two policy papers that
discuss the care with which the ADA definition of disability was
selected and the breadth of that definition. *A Carefully Constructed
Law* and *Broad or Narrow Construction of the ADA*, papers No. 2 and No.
4, respectively, of NCD's *Policy Brief Series: Righting the ADA
Papers*, can be found at\
<http://www.ncd.gov/newsroom/publications/2003/policybrief.htm>.

For some time after the ADA was signed into law, the pattern of broad
and inclusive interpretation of the definition of disability,
established under Section 504, continued under the ADA. In 1996, a
federal district court declared that "it is the rare case when the
matter of whether an individual has a disability is even disputed."[^13]
As some lower courts, however, began to take restrictive views of the
concept of disability, defendants took note, and disability began to be
contested in more and more cases.

Beginning with its decision in *Sutton v. United Airlines* in 1999, the
U.S. Supreme Court started to turn its back on the broad, relaxed
interpretation of disability endorsed by the Court in the *Arline*
decision. By the time of the *Toyota Motor Manufacturing, Kentucky, Inc.
v. Williams* decision in 2002, the Court was espousing the view that the
definition should be "interpreted strictly to create a demanding
standard for qualifying as disabled." This stance is directly contrary
to what the Congress and the President intended when they enacted the
ADA.

The result of the Court's harsh and restrictive approach to defining
disability places difficult, technical, and sometimes insurmountable
evidentiary burdens on people who have experienced discrimination. The
focus of many time-consuming and expensive legal battles is on the
characteristics of the person subjected to discrimination rather than on
the alleged discriminatory treatment meted out by the accused party. The
ADA was intended to regulate the conduct of employers and other covered
entities, and to induce them to end discrimination. To the extent that
these parties can divert the focus to a microscopic dissection of the
complaining party, central objectives of the law are being frustrated.

Other governments and judicial forums have rejected the Supreme Court's
restrictive interpretation of disability. Thus, courts in the individual
states[^14] and in other countries[^15] have embraced more inclusive
interpretations of who has a disability under nondiscrimination laws.
And legislatures in the states[^16] and in other countries[^17]
deliberately have rejected the narrow approach under U.S. law as
enunciated in the Supreme Court's decisions.

B.  **Specific Problems with the Interpretation of Disability**

In its *Righting the ADA* report, the National Council on Disability
described nine issues to which the Supreme Court's narrow approach to
the definition of disability in the ADA had led it to deviate from the
legislative intent with harmful consequences. These issues were:

\(1\) Consideration of Mitigating Measures in Determining Disability,

> \(2\) Substantial Limitation of a Major Life Activity,
>
> \(3\) Employment as a Major Life Activity,
>
> \(4\) The "Class or Broad Range of Jobs" Standard,
>
> \(5\) "Regarded As" Having a Disability,
>
> \(6\) Validity of and Deference to Be Accorded Federal Regulations
> Implementing the ADA 's Definition of Disability,
>
> \(7\) Duration Limitation on What Constitutes a Disability,
>
> \(8\) Per Se Disabilities, and
>
> \(9\) Restrictive Interpretation of the Definition of Disability
> to Create a Demanding Standard.

In regard to each of these issues, the report describes "What the
Supreme Court Did," analyzes the "Significance of the Court\'s Action,"
and gives specific "Examples of Impact" of the rulings. To provide a
graphic summary of the ways that the court decisions have deviated from
the intentions expressed by Congress when it enacted the ADA, I have
prepared and attached as Appendix B to this testimony a chart
contrasting "What Congress Said" with "What the Courts Are Now Saying."
Similarly, the *Righting the ADA* report contains a section titled
"Principles and Assumptions Regarding the Definition of Disability When
the ADA Was Enacted That Have Been Disregarded or Contradicted by the
Supreme Court" which presents 11 important ways in which the Court's ADA
definitions decisions deviate from expectations in place when the ADA
was negotiated debated and enacted. For the sake of brevity, that
information is not reiterated here, but the discussion of one of the
issues \-- mitigating measures \-- that follows hopefully exemplifies
the kinds of serious problems the Court's approach to the definition has
caused.

Before the Supreme Court upset the applecart, all the relevant
authorities were nearly unanimous in the view that mitigating measures
should not be considered in deciding whether a person has a disability
under the ADA. Even before the ADA was enacted, the committee reports on
the pending legislation declared clearly that mitigating measures should
not be factored in. The three ADA Committee Reports that addressed the
issue all concurred that mitigating measures are not to be taken into
account when determining whether an individual has a disability. This
Committee declared unequivocally that "\[w\]hether a person has a
disability should be assessed without regard to the availability of
mitigating measures ...."[^18] The House Committee on the Judiciary
likewise declared that "\[t\]he impairment should be assessed without
considering whether mitigating measures ... would result in a
less-than-substantial limitation."[^19] To illustrate the application of
this approach, the Committee discussed the examples of a person with
epilepsy whose condition is mitigated by medication and of a person with
a hearing impairment whose hearing loss is corrected by the use of a
hearing aid. In the Committee's view, these individuals would be covered
by the ADA.

In a sharp break from the legislative history of the ADA, the position
of the executive agencies responsible for enforcing the ADA, and the
prior rulings of eight of the nine federal courts of appeal that had
addressed the issue, the Supreme Court decided, in its rulings in the
*Sutton v. United Airlines, Inc.*, *Murphy v. United Parcel Service*,
and *Albertson's, Inc. v. Kirkingburg* cases, that mitigating measures
should be considered in determining whether an individual has a
disability under the ADA. The Supreme Court's position on mitigating
measures ignores the rationale that led courts, regulatory agencies, and
Congress to take a contrary position---that unless you disregard
mitigating measures in determining eligibility for ADA protection, you
shield much discrimination on the basis of disability from effective
challenge.

The result of the Court's rulings on mitigating measures turns the ADA's
definition of disability into an instrument for screening out large
groups of individuals with disabilities from the coverage of the Act,
and thereby insulating from challenge many instances of the pervasive
unfair and unnecessary discrimination that the law sought to prohibit.
To the extent that mitigating measures are successful in managing an
individual's condition, the Supreme Court's stance on mitigating
measures deprives the individual of the right to maintain an ADA action
to challenge acts of disability discrimination she or he has
experienced, because such a person is not eligible for the ADA's
protection. This means an employer or other covered entity may
discriminate with impunity against such individuals in various flagrant
and covert ways. NCD issued a policy paper examining the function and
types of mitigating measures, discussing the near consensus in the law
prior to the Supreme Court's taking a contrary position, and describing
the repercussions of the Court's position. *The Role of Mitigating
Measures in the Narrowing of the ADA's Coverage*, paper No. 11 of NCD's
*Policy Brief Series: Righting the ADA Papers*, can be found at
<http://www.ncd.gov/newsroom/publications/2003/policybrief.htm>.

Taking the condition of epilepsy to illustrate, before the Supreme
Court's rulings in *Sutton*, *Murphy*, and *Kirkingburg*, "a person
\[with\] epilepsy would receive nearly automatic ADA protection,"[^20]
consistent with statements in the ADA legislative history and regulatory
guidance. The ADA regulatory commentary of the Equal Employment
Opportunity Commission (EEOC) and Department of Justice (DOJ)
specifically declared that an individual with epilepsy would remain
within the coverage of the ADA even if the effects of the condition were
controlled by medication.

The situation changed dramatically with the Supreme Court's mitigating
measures decisions. To the extent that a covered entity can successfully
demonstrate (after extensive, intrusive discovery into the details of
the person's condition) that an individual's epilepsy is effectively
controlled by medication, the individual cannot challenge the
discriminatory actions of the covered entity. This is true even if the
employer or other covered entity has an express policy against the
hiring of people with epilepsy; puts up signs that say, "epileptics not
welcome here"; inaccurately assumes that all persons with epilepsy are
inherently unsafe; or has the irrational belief that epilepsy is
contagious. The unfairness or irrationality of the covered entity's
actions and motivations, including stereotypes, fears, assumptions, and
other forms of prejudice, cannot be challenged by a person whose
condition is mitigated. The end result is that it is a rare plaintiff
who is in a position to challenge even the most egregious and outrageous
discrimination involving a condition that can be mitigated. One study,
by the Epilepsy Legal Defense Fund, found that, of 36 cases in which
courts had ruled on the issue since the Supreme Court issued its
decision in *Sutton v. United Airlines*, 32 had decided that epilepsy
was not a disability.

Epilepsy is an illustrative example, but the same principles apply to
diabetes, various psychiatric disabilities, hypertension, arthritis, and
numerous other conditions that, for some individuals, can be controlled
by medication. Moreover, the same problems arise with conditions for
which techniques and devices other than medication provide an avenue for
mitigation. Thus, a company that discriminates against people who use
hearing aids will be insulated from challenge by people for whom the
hearing aids are effective in offsetting, to some degree, diminution of
functional ability to hear. Other mitigating measures, including
prosthetic devices, can raise the same issues -- to the extent that they
are successful, they may lead to an argument that the person does not
have a disability, even if she or he is discriminated against precisely
because of the underlying condition or even the use of the mitigating
measure itself. Obviously, this is directly contrary to the stated
intentions of this Committee and the Congress as a whole.

**C. Misconstruing a Central Premise Underlying the ADA**

Courts that have espoused restrictive interpretations of the definition
of disability under the ADA have truly missed the boat on disability.
They have exhibited long-held, antiquated notions about disability and
about the role of government in addressing disability. If courts think
of people with disabilities as not capable of working, for example,
anyone who is able to work must not be disabled. Similarly, access
barriers were historically viewed by many people as being barriers
because of an individual\'s disability, as opposed to the problem being
the barrier itself. When a person with a mobility impairment, for
example, could not cross a street with curbs, the person\'s disability
was considered to be the reason, as opposed to recognizing that the
design of the curb was deficient because it was done with only certain
types of people in mind, when it could just as easily have been designed
to be usable by all. The ADA embodies a social concept of discrimination
that views many limitations resulting from actual or perceived
impairments as flowing, not from limitations of the individual, but,
rather, from the existence of unnecessary barriers to full participation
in society and its institutions. The social model is at variance with
the medical model of disability that centers on assessments of the
degree of a person's functional limitation.[^21]

I once wrote that "\[d\]isability nondiscrimination laws, such as the
Americans with Disabilities Act, and the disability rights movement that
spawned them have, at their core, a central premise both simple and
profound ... that people denominated as 'disabled' are just people \--
not different in any critical way from other people." [^22] To elaborate
a bit on that idea, I wrote a section titled "People with Disabilities
\"People with Disabilities as Regular Joes and Janes\" that I shall take
the liberty of quoting from here:

Over thirty years ago, Jacobus tenBroek characterized people with
disabilities as \"normal people caught at a physical and social
disadvantage.\" In his remark, Professor tenBroek captured a truth that
is both the guiding star and essential foundation ... \-- that
individuals with disabilities are just people, not essentially different
from other people. Though this proposition is relatively simple to
state, its acceptance is the single most universal aspiration of most
individuals with disabilities, a central tenet of the Disability Rights
Movement, and a *sine qua non* of real equality for people with
disabilities.

> This helps to explain why terminology in regard to disabilities has
> been a sensitive issue. People with disabilities have come to
> recognize that processes by which they are assigned labels have
> reinforced the perception that they are substantially different from
> others. In response, they have strongly insisted that \"we are
> \`people first,\'\" and have demanded that their common humanity be
> acknowledged rather than their differentness magnified. It also
> explains why many individuals with disabilities resist attempts to
> characterize them as \"special\" or their daily accomplishments as
> \"inspirational\" or \"courageous.\" At best, such characterizations
> mark the individual so labeled as extraordinary and different from the
> rest of the population and one whose accomplishments and success are a
> surprise; at worst, they suggest that the speaker is saying \"Being
> who you are is so bad that I could not face it \-- I would just give
> up,\" \"Your limitations are so severe that I don\'t see how you
> accomplish anything,\" or even \"I would rather be dead than to live
> with your impairments.\" People with disabilities do not view their
> going about the tasks and trials involved in ordinary activities and
> trying to have accomplishments and success as something atypical and
> heroic. They would prefer to be seen for what they are, as ordinary
> individuals pursuing the same types of goals \-- love, success, sexual
> fulfillment, contributing to society, material comforts, etc. \-- as
> other folks.
>
> The \"integration\" that is required under the ADA and Sections 501,
> 503, and 504, and the \"full participation\" that is the ultimate
> objective of federal laws relating to disabilities dictate that
> individuals with disabilities not be unnecessarily differentiated from
> the rest of society. To achieve this end, analysis under these laws
> should not focus on differentiating characteristics of the individual
> alleging discrimination, but instead on the practices and operations
> of covered entities to determine whether or not they are in fact
> discriminatory, when examined in light of latent flexibility in
> structuring and modifying tasks, programs, facilities, and
> opportunities. Legal standards imposed under these laws should serve
> to eliminate practices, policies, barriers, and other mechanisms that
> discriminate on the basis of disability, not to eliminate as many
> people as possible from the protection provided in these laws. In
> short, these laws seek to promote real equality, not to protect a
> special group.[^23]

Despite common misconceptions that there are two distinct groups in
society \-- those with disabilities and those without \-- and that it is
possible to draw sharp distinctions between these two groups, people
actually vary across a whole spectrum of infinitely small gradations of
ability with regard to each individual functional skill. And the
importance of particular functional skills varies immensely according to
the situation, and can be greatly affected by the availability or
unavailability of accommodations and alternative methods of doing
things. This human \"spectrum of abilities\" was recognized in a 1983
report by the U.S. Commission on Civil Rights - *Accommodating the
Spectrum of Individual Abilities*. The Commission noted that, while the
popular view is that people with disabilities are impaired in ways that
make them sharply distinguishable from nondisabled people, instead of
two separate and distinct classes, there are in fact \"spectrums of
physical and mental abilities that range from superlative to minimal or
nonfunctional.\"[^24] In some of its publications, the National Council
on Disability has explained and elaborated on the spectrum of abilities
concept.[^25]

In addition, authorities on disability are generally in agreement that
the concept of disability entails a social judgment; people come to have
a disability when they are viewed and treated as having one by other
people. As the U.S. Commission on Civil Rights put it in *Accommodating
the Spectrum of Individual Abilities*, \"people are *made* different \--
that is socially differentiated \-- by the process of being seen and
treated as different in a system of social practices that crystallizes
distinctions \....\"[^26] Thus, the experience of disability is closely
linked to the concept of discrimination. Individuals may encounter
discrimination on the basis of disability whether or not they previously
thought of themselves as having a disability, and whether or not they
meet foreordained, medically oriented criteria. To achieve its purposes
of eliminating discrimination and achieving integration, the ADA should
reduce the unnecessary differentiation of people because of actual,
perceived, or former physical and mental characteristics. It
emphatically should not force people to demonstrate their differentness
as a prerequisite to receiving protection under the Act.

The ADA is based on a social or civil rights model (sometimes referred
to as a socio-political model), in contrast to the traditional \"medical
model.\" It views the limitations that arise from disabilities as
largely the result of prejudice and discrimination rather than as purely
the inevitable result of deficits in the individual. Sociology Professor
Richard K. Scotch, a disability policy author, has written:

In the socio-political model, disability is viewed not as a physical or
mental impairment, but as a social construction shaped by environmental
factors, including physical characteristics built into the environment,
cultural attitudes and social behaviors, and the institutionalized
rules, procedures, and practices of private entities and public
organizations. All of these, in turn, reflect overly narrow assumptions
about what constitutes the normal range of human functioning.[^27]

Law Professor Linda Hamilton Krieger has written that the ADA\'s concept
of disability views it \"not only in terms of the internal attributes of
the arguably disabled individual, but also in terms of external
attributes of the attitudinal environment in which that person must
function. \`Disability,\' under this conception, resides as much in the
attitudes of society as in the characteristics of the disabled
individual.\"[^28] She elaborated on the ADA\'s adoption of the social
model as follows:

> \[T\]he drafters of the ADA sought to transform the institution of
> disability by locating responsibility for disablement not only in a
> disabled person\'s impairment, but also in \"disabling\" physical or
> structural environments. Under such a construction, the concept of
> disability takes on new social meaning. It is not merely a container
> holding tragedy, or occasion for pity, charity, or exemption from the
> ordinary obligations attending membership in society. The concept of
> disability now also, or to a certain extent instead, contains rights
> to and societal responsibility for making enabling environmental
> adaptations. The ADA was in this way crafted to replace the old
> impairment model of disability with a socio-political approach.

The National Council on Disability has discussed the necessity for
applying the social model of disability under the ADA.[^29] In the topic
paper accompanying its initial proposal of an Americans with
Disabilities Act, NCD expressly rejected the \"medical model\" and the
need for people to demonstrate the severity of their limitations as a
precondition to being protected from discrimination.[^30] In its
*Righting the ADA* report, NCD included a section titled \"Incorporation
of a Social Model of Discrimination.\" The Council declared:

The ADA embodies a social concept of discrimination that views many
limitations resulting from actual or perceived disabilities as flowing,
not from limitations of the individual, but, rather, from the existence
of unnecessary barriers to full participation in society and its
institutions. This is in contrast to the medical model of disability
that centers on assessments of the degree of a person\'s functional
limitation.[^31]

Accordingly, NCD called for the enactment of a specific provision of its
ADA Restoration Act proposal to make the endorsement of the social model
explicit.[^32]

D.  **Other Kinds of Problems Resulting from Supreme Court Rulings**

Apart from problems with the definition of disability, the *Righting the
ADA* report discusses in detail several other kinds of problems that
have resulting from ill-advised ADA rulings of the Supreme Court. These
include the following:

1\. In *Buckhannon Board and Care Home, Inc. v. West Virginia Department
of Health and Human Resources*, the Supreme Court rejected the "catalyst
theory" that most lower courts had applied in determining the
availability of attorney's fees and litigation costs to plaintiffs in
cases under the ADA and other civil rights statutes, and under other
federal laws that authorize such payments to the "prevailing party."

2\. In *Barnes v. Gorman*, the Supreme Court ruled that punitive damages
may not be awarded in private suits brought under Title VI of the 1964
Civil Rights Act, under Section 202 of the ADA, or under Section 504 of
the Rehabilitation Act.

3\. In *Chevron U.S.A. Inc. v. Echazabal*, the Supreme Court upheld as
permissible under the ADA the EEOC regulatory provision that allows
employers to refuse to hire applicants because their performance on the
job would endanger their health because of a disability, despite the
fact that, in the language of the ADA, Congress recognized a
"direct-threat" defense only for dangers posed to other workers.

4\. In *U.S. Airways, Inc. v. Barnett*, the Supreme Court recognized a
reasonableness standard for reasonable accommodations separate from
undue hardship analysis.

5\. In *U.S. Airways, Inc. v. Barnett*, the Supreme Court ruled that the
ADA ordinarily does not require the assignment of an employee with a
disability, as a reasonable accommodation, to a particular position to
which another employee is entitled under an employer's established
seniority system, but that it might in special circumstances. The Court
declared that "to show that a requested accommodation conflicts with the
rules of a seniority system is ordinarily to show that the accommodation
is not 'reasonable.'"

The implications of some of these rulings are a bit technical and a
fuller explanation is not provided here. They are explained in some
detail in *Righting the ADA* and in the specific topic papers mentioned
in the report. As those sources explain, the negative impact of such
decisions on the protection of people with disabilities under the ADA is
significant and disturbing.

**GETTING THE ADA BACK ON TRACK: REMEDIAL LEGISLATION**

**A. Generally**

Based on its analysis of what has happened in the last 17 years since
the ADA was enacted the National Council on Disability reached the
following conclusion:

> Incisive and forceful legislative action is needed to address the
> dramatic narrowing and weakening of the protection provided by the
> ADA, resulting from the Supreme Court's decisions, and to restore
> civil rights protections. Millions of Americans experience
> discrimination based on ignorance, prejudice, fears, myths,
> misconceptions, and stereotypes that many in American society continue
> to associate with certain impairments, diagnoses, or characteristics.
> To revive the scope and degree of protection that the ADA was supposed
> to provide---to address "pervasive" discrimination in a
> "comprehensive" manner, as the Act declares---and to put ADA
> protections on a more equal footing with other civil rights
> protections under federal law, it is necessary to remove conceptual
> and interpretational baggage that has been attached to various
> elements of the ADA. Any legislative proposal should address, in some
> way, each of the problems listed in Section II of this report
> \[*Righting the ADA*\] that the Court's decisions have created.

For convenience I am attaching as Appendix C to this testimony the
Executive Summary of NCD's *Righting the ADA* report. It contains a
legislative proposal for getting the ADA back on course -- an ADA
Restoration Act bill -- with an explanatory introduction and a
section-by-section summary. I believe it represents the best thinking to
date on what ought to be done to "restore" the ADA to its original
congressionally intended course. NCD's proposal addresses a broader
array of issues than are dealt with in H.R. 3195, but the amendments
proposed in H.R. 3195 to restore the protections and scope of coverage
of the ADA are largely based on and generally quite consistent with the
*Righting the ADA* proposals.

B. **Restoring the Scope of ADA Protection \-- H.R. 3195**

The courts have made a royal mess of the three-prong definition of
disability in the ADA. This has occurred in spite of very clear and
explicit language and guidance Congress provided in the Act and its
legislative history. Baffled individuals with all sorts of physical and
mental impairments find that they are not allowed to challenge
discrimination against them, based on legal rationales that are
tortured, hypertechnical, and contrary to common sense.

Employers are able to say "Your condition is so problematic that I can't
hire you," or "so problematic that I must terminate you," and then turn
around and argue in court, successfully, that "your condition isn't
serious enough to constitute a disability." The focus of proceedings in
most ADA cases is not on the alleged discrimination the plaintiff
experienced. Instead the focus is on an invasive and often embarrassing,
detailed dissection of the plaintiff's condition, limitations, and
medical background. Instead of concentrating on employment or other
particular activity in which the discrimination is alleged to have
occurred, the proceedings and arguments often are about other
activities, such as sexual activities, reproduction, personal care, and
many other areas of life far afield from the alleged discrimination.
Plaintiffs are required to demonstrate whether, in discharging them,
employers were thinking they were unfit for a broad class or range of
jobs -- a matter that is purely hypothetical and concerns the mental
state of the employer -- a notoriously difficult thing to prove.
Astoundingly, the Supreme Court has even questioned whether employment
is a major life activity at all.

H.R. 3195 addresses the most serious distortions that have resulted from
a constricted interpretation by the courts of the ADA definition of
disability. It does so in a manner that is straightforward and effective
in clearing up the detrimental analytical muddle of the current judicial
interpretations. Consistent with informed public policy, the bill
returns the primary focus away from misplaced efforts to draw pedantic,
absurd distinctions based on judicial assessments of degree of
limitation and returns it to identifying and eliminating discrimination
on the basis of disability. To repair the tangle of interpretations that
have resulted from the Supreme Court's announced proclivity for seeing
to it that the ADA's coverage is "interpreted strictly to create a
demanding standard for qualifying as disabled,"[^33] the bill replaces
the concept of "substantial limitation," that has been so thoroughly and
irreparably compromised and misapplied by the courts, with the
straightforward concept of physical or mental impairment, a concept that
has a clear and settled definition. A person who has been subjected to
an adverse employment action (or disadvantaged in regard to other types
of services or benefits of non-employment programs and entities covered
by the ADA) because of a physical or mental impairment will be protected
by the ADA.

At first glance, one might question whether this alteration to the
statutory language will engender an unwarranted enlargement of ADA
coverage -- expansion rather than restoration. A more informed
understanding of the scope of protection Congress intended to establish
in 1990 leads to the opposite conclusion. The third prong of the ADA
definition, which includes people who are "regarded as" having an
impairment, was understood at the time of enactment to include anyone
who was disadvantaged by a covered entity on the basis of disability. It
is well-documented, if all too often ignored by the courts that, as
understood by Congress when it passed the ADA, the law was supposed to
protect any person who was discriminated against because of a physical
or mental impairment. In its Committee Report accompanying its reporting
out of the ADA, this Committee said:

> The third prong of the definition includes an individual who is
> regarded as having a covered impairment. This third prong includes an
> individual who has physical or mental impairment that does not
> substantially limit a major life activity, but that is treated by a
> covered entity as constituting such a limitation. The prong also
> includes an individual who has a physical or mental impairment that
> substantially limits a major activity only as a result of the
> attitudes of others toward such impairment or has no physical or
> mental impairment but is treated by a covered entity as having such an
> impairment.[^34]

The Senate ADA Report contained identical language.[^35]

The Committee on Education and Labor went on to explain, in crystal
clear terms:

> A person who is excluded from any basic life activity, or is otherwise
> discriminated against, because of a covered entity's negative
> attitudes toward that person's impairment is treated as having a
> disability. Thus, for example, if an employer refuses to hire someone
> because of a fear of the "negative reactions" of others to the
> individual, or because of the employer's perception that the applicant
> has an impairment which prevents that person from working, that person
> is covered under the third prong of the definition of disability.[^36]

The Report of this Committee and those of the Senate and the House
Judiciary Committee all discussed, as guiding precedent, the decision of
the Supreme Court in the *Arline* case, which, as described above, took
an expansive view of the third prong of the definition, and all three
quoted the following language from the *Arline* decision:

> 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 other to the
> impairment.[^37]

Clearly, Congress understood that Section 504 did, and intended that the
ADA would, protect a person with an impairment, even if it did not
substantially limit a major life activity.

Contrary to the Supreme Court's view discussed above, Congress intended
that adverse employment action by a single employer in regard to a
single job would be sufficient to satisfy the third prong of the ADA
definition. The Senate Committee Report pointedly cited as examples of
individuals included within the "regarded as" concept "people who are
rejected *for a particular job* for which they apply because of findings
of a back abnormality in an x‑ray, notwithstanding the absence of any
symptoms, or people who are rejected *for a particular job* solely
because they wear hearing aids . . . ."[^38] The report added:

A person who is excluded from any activity covered under this Act or is
otherwise discriminated against because of a covered entity's negative
attitudes towards disability is being treated as having a disability
which affects a major life activity. For example, if a public
accommodation, such as a restaurant, refused entry to a person with
cerebral palsy because of that person's physical appearance, that person
would be covered under the third prong of the definition. Similarly, if
an employer refuses to hire someone because of a fear of the Anegative
reactions@ of others to the individual, or because of the employer's
perception that the applicant had a disability which prevented that
person from working, that person would be covered under the third
prong.[^39]

Not only is there no suggestion of a need to show that the individual is
limited in connection with other jobs or participation in other
programs, but in support of the quoted language the report cited
*Thornhill* v*. Marsh* and *Doe* v. Centinela *Hospital* -- two
decisions which broadly interpret the third prong, consistent with the
*Arline* decision.[^40] This Committee expressed similar sentiments and
included the same case citations in its report.[^41]

The House Committee on the Judiciary used language that differs somewhat
from that in the other reports but to similar effect. It noted that

a person who is rejected from *a job* because of the myths, fears, and
stereotypes associated with disabilities would be covered under this
third test, *whether or not the employer's perception was shared by
others in the field* and whether or not the person's physical or mental
condition would be considered a disability under the first or second
part of the definition.[^42]

To manifest its intent even further, the Judiciary Committee declared:

> In the employment context, 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 employing persons with disabilities could be
> inferred and the plaintiff would qualify for coverage under the
> Aregarded as@ test.[^43]

Thus, all of the Congressional Committees that commented on the ADA
definition of disability understood it to include persons with any
degree or type of physical or mental impairment if they were
discriminated against because of it; or even if they had no impairment
at all, if the covered entity believed they did and subjected them to
discrimination for that reason. Accordingly, H.R. 3195 merely restores,
not expands, the coverage of the ADA by protecting persons who are
discriminated against because of a physical or mental impairment
regardless of severity.

Another possible objection to H.R. 3195 is that it might make people
with very minor impairments eligible for "reasonable accommodations," to
the serious detriment of employers. This concern reflects a
misunderstanding about the entitlement to reasonable accommodations
under the ADA. The ADA does not entitle everyone protected from
discrimination under the Act to receive a reasonable accommodation, nor
does the Act provide a right to covered individuals to any
accommodations they may desire.

Reasonable accommodations are required under the act for a reason -- to
overcome the effects of impairment that will prevent performance of
essential job functions or result in denial of job benefits. The ADA
regulations issued by the EEOC make this abundantly clear; they declare
that the term "reasonable accommodation" means:

Modifications or adjustments to the work environment, or to the manner
or circumstances under which the position held or desired is customarily
performed, that enable a qualified individual with a disability to
perform the essential functions of that position."[^44]

The EEOC's Interpretive Guidance explains that A\[t\]he reasonable
accommodation requirement is best understood as a means by which
barriers to the equal employment opportunity of an individual with a
disability are removed or alleviated@ and adds that those barriers may
consist of physical or structural obstacles, rigid schedules, inflexible
procedures, or undue limitations in the ways tasks are
accomplished.[^45]

**The nature and function of reasonable accommodation mean that a person
cannot qualify for one unless he or she can show that a physical or
mental impairment prevents the performance of an essential job
function.** Unless the impairment has such an effect, there is no reason
for an accommodation. Accordingly, fears that people having very minor
impairments will be able to demand accommodations willy-nilly is totally
unfounded. Minor impairments will seldom, if ever, prevent performance
of essential employment functions.

Even if a person could show that a minor impairment did somehow preclude
performance of an essential function of the job, that would still not
mean that the person could obtain some extravagant accommodation. The
process of deciding upon and rendering accommodation is largely within
the auspices of employers.

The EEOC's Interpretive Guidance and the ADA committee reports specified
a process that covered entities should follow when determining what type
of accommodation ought to be provided in a particular situation. The
reports of this Committee and that of the Senate Labor and Human
Resources declared in identical language that:

The Committee believes that the reasonable accommodation requirement is
best understood as a process in which barriers to a particular
individual's equal employment opportunity are removed. The accommodation
process focuses on the needs of a particular individual in relation to
problems in performance of a particular job because of a physical or
mental impairment. A problem‑solving approach should be used to identify
the particular tasks or aspects of the work environment that limit
performance and to identify possible accommodations that will result in
a meaningful equal opportunity for the individual with a
disability.[^46]

If initial discussions between the employer and the employee or
applicant do not readily disclose what accommodation is called for, the
EEOC recommends that an employer undertake a four‑step process:

\(1\) Analyze the particular job involved and determine its purpose and
essential functions;

\(2\) Consult with the individual with disability to ascertain the
precise job‑related limitations imposed by the individual's disability
and how those limitations could be overcome with a reasonable
accommodation;

\(3\) In consultation with the individual to be accommodated, identify
potential accommodations and assess the effectiveness each would have in
enabling the individual to perform the essential functions of the
position; and

\(4\) Consider the preference of the individual to be accommodated and
select and implement the accommodation that is most appropriate for both
the employee and the employer.[^47]

The first step, analyzing the job, involves examining the actual job
duties and determining the true purpose or object of the job and
identifying the essential functions that an accommodation must enable
the individual with a disability to perform.[^48] The ADA committee
reports refer to this step as "identifying and distinguishing between
essential and nonessential job tasks and aspects of the work environment
of the relevant position(s)."[^49] The second step, ascertaining the
limitations imposed by the disability and how a reasonable accommodation
might overcome them, seeks to identify the precise barrier to the
employment opportunity that needs to be addressed by an
accommodation.[^50]

The third step, identifying possible accommodations and assessing their
effectiveness, begins with suggestions of accommodations by the
individual needing accommodation and may also involve consultations with
vocational rehabilitation personnel, the EEOC, or disability constituent
organizations.[^51] Assessing the effectiveness of various possible
accommodations includes considering the likely success of each potential
accommodation in assisting the individual to perform the essential
functions of the position, the reliability of the accommodation, and
whether it can be provided in a timely manner.[^52]

The fourth step is to select and implement an appropriate accommodation.
Where more than one accommodation will enable the individual with a
disability to perform the essential functions of the position, his or
her preference should be given primary consideration, but the employer
retains the ultimate discretion to choose between effective
accommodations and may choose the one that is less expensive or easier
to provide.[^53]

At each of these steps, employers are in the driver's seat, although
they are definitely required to consult with the individual seeking the
accommodation. Employers will certainly be able to say no to unjustified
or excessive requested accommodations. And ultimately the employer can,
if necessary, invoke the ADA's defense against having to provide
accommodations that result in an undue hardship. Thus, in the highly
unlikely hypothetical situation in which a person could demonstrate that
a minor impairment would somehow prevent performance of an essential job
function, the employer would be fully within its rights to select a
realistic and proportionate accommodation.

H.R. 3195 will not cause a problem of accommodations for minor
impairments. Nor will it enlarge the ADA's coverage beyond that intended
when the law was enacted. The bill's approach to restoring the
definition of disability is well-designed to undo the damage wrought by
the courts' constricted interpretation of ADA protection. I hope that
this Committee will advance this legislation promptly to achieve what
the Committee intended when it voted 35-0 to report out the ADA in 1989.

Thank you very much for this opportunity to provide input to the
Committee on this highly important subject.

**APPENDIX A**

**SAMPLING OF CASES IN WHICH PLAINTIFFS HAVING SIGNIFICANT IMPAIRMENTS
WERE UNSUCCESSFUL IN DEMONSTRATING THAT THEY WERE PROTECTED BY THE ADA**

Amputation: *Williams v. Cars Collision Center, LLC*, No. 06 C 2105
(N.D. Ill. July 9, 2007).

Asbestosis: *Robinson v. Global Marine Drilling Co*., 101 F.3d 35 (5^th^
Cir. 1996).

Asthma: *Tangires v. Johns Hopkins Hosp*., 79 F.Supp.2d 587, 589
(D.Md.2000)

Back Injury: *Wood v. Crown Redi-Mix, Inc*., 339 F.3d 682, 684 (8th
Cir.2003)

Bipolar disorder: *Johnson v. North Carolina Dep't of Health and Human
Servs*., (M.D.N.C. 2006).

Breast cancer (and accompanying mastectomy, chemotherapy, and radiation
therapy): *Pimental v. Dartmouth-Hitchcock Clinic*, 236 F. Supp. 2d 177,
183 (D.N.H. 2002); *Turner v. Sullivan University Systems, Inc.,* 420 F.
Supp. 2d 773, 777 (W.D. Ky. 2006).

Breast cancer (and accompanying mastectomy and chemotherapy): *Schaller*
*v. Donelson Air Conditioning Co.*, 2005 WL 1868769 (M.D. Tenn. Aug. 4,
2005).

Cirrhosis of the liver caused by chronic Hepatitis B: *Furnish* v. *SVI
Sys. Inc.,* 270 F.3d 445 (7^th^ Cir. 2001).

Depression: *McMullin v. Ashcroft*, 337 F.Supp.2d 1281, 1298-99
(D.Wyo.2004).

Diabetes: *Orr v. Wal-Mart Stores, Inc.,* 297 F.3d 720 (8^th^ Cir.
2002).

Epilepsy: *Equal Employment Opportunity Comm\'n v. Sara Lee Corp.*, 237
F.3d 349 (4th Cir. 2001); *Todd v. Academy Corp.*, 57 F. Supp. 2d 448,
453-54 (S.D. Tex. 1999).

Fractured spine: *Williams v. Excel Foundry & Machine, Inc.*, 489 F.3d
309, 311 (7th Cir. 2007).

Heart disease and diabetes: *Epstein v. Kalvin-Miller International,
Inc.*, 100 F. Supp. 2d 222, 223 (S.D.N.Y. 2000).

HIV Infection: *Cruz Carrillo v. AMR Eagle, Inc.,* 148 F.Supp.2d 142,
146 (D.P.R.2001).

Impaired hearing/use of hearing aid: *Eckhaus v. Consolidated Rail,
Corp.,* No. Civ. 00-5748 (WGB), 2003 WL 23205042, at \*5 (D.N.J. Dec.
24, 2003).

Loss of most vision in one eye*: Foore v. City of Richmond*, 6 Fed.
Appx. 148, 150 (4^th^ Cir. 2001).

Loss of use of right arm: *Didier* v. *Schwan Food Co.*, 465 F.3d 838
(8^th^ Cir. 2006).

"Mental retardation" \-- intellectual and developmental disabilities:
*Littleton v. Wal-Mart Stores, Inc.*, No. 05-12770, 2007 WL 1379986, at
\*4 (11^th^ Cir. May 11, 2007)

Multiple sclerosis: *Sorensen v. University of Utah* Hosp., 194 F.3d
1084, 1089 (10th Cir.1999).

Muscular dystrophy: *McClure v. General Motors Corp.*, 75 Fed. Appx.
983, 2003 WL 21766539 (5th Cir. 2003).

Post-Traumatic Stress Disorder: *Rohan v. Networks Presentations LLC*,
375 F.3d 266, 277 (4th Cir.2004).

Traumatic brain injury: *Phillips v. Wal-Mart Stores, Inc.*, 78 F. Supp.
2d 1274 (S.D. Ala. 1999).

**APPENDIX B**

**CONGRESS SAID THE COURTS NOW SAY**

  ----------------------------------- -----------------------------------
  **"COMPREHENSIVE PROHIBITION OF     **ELEMENTS OF DEFINITION "NEED TO
  DISCRIMINATION ON THE BASIS OF      BE INTERPRETED STRICTLY TO CREATE A
  DISABILITY"**                       DEMANDING STANDARD FOR QUALIFYING
                                      AS 'DISABLED'"**

  **"DISABILITY SHOULD BE ASSESSED    **MITIGATING MEASURES SHOULD BE
  WITHOUT REGARD TO THE AVAILABILITY  CONSIDERED IN DETERMINING EXISTENCE
  OF MITIGATING MEASURES"**           OF A DISABILITY**

  **EMPLOYMENT IS A MAJOR LIFE        **EMPLOYMENT MAY NOT BE A MAJOR
  ACTIVITY**                          LIFE ACTIVITY**

  **DENIAL OF A PARTICULAR JOB IS     **THERE MUST BE DENIAL OF A BROAD
  SUFFICIENT TO CONSTITUTE A          RANGE OR CLASS OF JOBS TO
  SUBSTANTIAL LIMITATION IN           CONSTITUTE A SUBSTANTIAL
  EMPLOYMENT**                        LIMITATION**

  **FEDERAL AGENCIES ARE DIRECTED TO  **REGULATIONS INTERPRETING THE
  ISSUE REGULATIONS FOR CARRYING OUT  DEFINITION OF DISABILITY ARE OF
  ADA**                               DOUBTFUL VALIDITY**

  **"MAJOR LIFE ACTIVITIES OF SUCH    **"ACTIVITIES THAT ARE OF CENTRAL
  INDIVIDUAL"**                       IMPORTANCE IN MOST PEOPLE'S DAILY
                                      LIVES"**

  **"SUBSTANTIALLY LIMITS"**          **"PREVENTS OR SEVERELY
                                      RESTRICTS"**
  ----------------------------------- -----------------------------------

**CONGRESS SAID THE COURTS NOW SAY**

+-----------------------------------+-----------------------------------+
| **"REGARDED AS" PRONG APPLIES TO  | **"REGARDED AS" PRONG SUBJECT TO  |
| PERSON DISCRIMINATED AGAINST      | FIRST PRONG LIMITATIONS, SUCH AS  |
| BASED ON DISABILITY EVEN IF       | CONSIDERATION OF MITIGATING       |
| PERSON DOES NOT HAVE              | MEASURES AND REQUIREMENT THAT     |
| SUBSTANTIALLY LIMITING            | PERSON BE UNABLE TO PERFORM BROAD |
| CONDITION**                       | RANGE OR CLASS OF JOBS**          |
+-----------------------------------+-----------------------------------+
| **"REGARDED AS" PRONG APPLIES TO  | **"REGARDED AS" PRONG APPLIES     |
| PERSON TREATED AS HAVING A        | ONLY WHEN EMPLOYER SHOWN TO       |
| DISABILITY**                      | "ENTERTAIN MISPERCEPTIONS ABOUT   |
|                                   | THE INDIVIDUAL" AND BELIEVES THE  |
|                                   | PERSON HAS A SUBSTANTIALLY        |
|                                   | LIMITING IMPAIRMENT**             |
+-----------------------------------+-----------------------------------+
| **NO MENTION OF                   | **"IMPAIRMENT'S IMPACT MUST ALSO  |
| DURATION-OF-IMPAIRMENT            | BE PERMANENT OR LONG TERM" TO     |
| LIMITATION**                      | CONSTITUTE A DISABILITY**         |
+-----------------------------------+-----------------------------------+
| **HIV, PARAPLEGIA, DEAFNESS, HARD | **MAYBE SO, MAYBE NOT**           |
| OF HEARING/HEARING LOSS, LUNG     |                                   |
| DISEASE, BLINDNESS, MENTAL        |                                   |
| RETARDATION, ALCOHOLISM**         |                                   |
|                                   |                                   |
| **ARE DISABILITIES**              |                                   |
+-----------------------------------+-----------------------------------+

**APPENDIX C**

THE FOLLOWING IS FROM THE *RIGHTING THE ADA* REPORT OF THE NATIONAL
COUNCIL ON DISABILITY (DECEMBER 2004), PP. 11-27:

Executive Summary

Many Americans with disabilities feel that a series of negative court
decisions is reducing their status to that of "second-class citizens," a
status that the Americans with Disabilities Act (ADA) was supposed to
remedy forever. In this report, the National Council on Disability
(NCD), which first proposed the enactment of an ADA and developed the
initial legislation, offers legislative proposals designed to get the
ADA back on track. Like a boat that has been blown off course or tipped
over on its side, the ADA needs to be "righted" so that it can
accomplish the lofty and laudable objectives that led Congress to enact
it.

Since President George H.W. Bush signed the ADA into law in 1990, the
Act has had a substantial impact. The Act has addressed and prohibited
many forms of discrimination on the basis of disability, although
implementation has been far from universal and much still remains to be
done. In its role in interpreting the ADA , the judiciary has produced
mixed results. Led by the U.S. Supreme Court, the courts have made some
admirable rulings, giving effect to various provisions of the Act.
Unfortunately, however, many ADA court decisions have not been so
positive. This report addresses a series of Supreme Court decisions in
which the Court has been out of step with the congressional, executive,
and public consensus in support of ADA objectives, and has taken
restrictive and antagonistic approaches toward the ADA , resulting in
the diminished civil rights of people with disabilities. In response to
the Court's damaging decisions, this report seeks to document and
explain the problems they create and advance legislative proposals to
reverse their impact. NCD has developed more extensive and detailed
analyses of these issues in a series of papers published under the title
*Policy Brief Series: Righting the ADA Papers*. The papers can be found
at <http://www.ncd.gov/newsroom/publications/2003/policybrief.htm>.

In an effort to return the ADA to its original course, this report
offers a series of legislative proposals designed to do the following:
(1) reinstate the scope of protection the Act affords, (2) restore
certain previously available remedies to successful ADA claimants, and
(3) repudiate or curtail certain inappropriate and harmful defenses that
have been grafted onto the carefully crafted standards of the ADA.

As this report was going to press, the Supreme Court issued its decision
in the case of *Tennessee v. Lane*, in which the Court upheld provisions
of Title II of the ADA, as applied, to create a right of access to the
courts for individuals with disabilities. The *Lane* ruling certainly
merits additional study, and NCD expects to issue future analyses of the
decision and the questions it leaves open. This report does not attempt
to address such issues.

The body of the report at times discusses alternative legislative
approaches to some of the problems it addresses. NCD has chosen,
however, to consolidate its preferred solutions to the various problems
into a single draft bill. The following represent the specific
legislative proposals made by NCD at this time for "righting the ADA,"
first described in a Section-by-Section Summary and then presented as a
proposed "ADA Restoration Act of 2004."

The ADA Restoration Act of 2004: Section-by-Section Summary

Section 1---Short Title\
This section provides that the law may be cited as The ADA Restoration
Act of 2004 and conveys the essence of the proposal's thrust, which is
not to proffer some new, different rendition of the ADA but, rather, to
return the Act to the track that Congress understood it would follow
when it enacted the statute in 1990. The title echoes that of the Civil
Rights Restoration Act of 1987, which was passed to respond to and undo
the implications of a series of decisions by the Supreme Court,
culminating in *Grove City College v. Bell,* which had taken a
restrictive view of the phrase "program or activity" in defining the
coverage of various civil rights laws applicable to recipients of
federal financial assistance. As with that law, The ADA Restoration Act
would "restore" the law to its original congressionally intended course.

Section 2---Findings and Purposes\
*Subsection (a)* presents congressional findings explaining the reasons
that an ADA Restoration Act is needed. It describes how certain
decisions of the Supreme Court have weakened the ADA by narrowing the
broad scope of protection afforded in the Act, eliminating or narrowing
remedies available under the Act, and recognizing some unnecessary
defenses that are inconsistent with the Act's objectives.

*Subsection (b)* provides a statement of the overall purposes of the ADA
Restoration Act, centering on reinstating original congressional intent
by restoring the broad scope of protection and the remedies available
under the ADA, and negating certain inappropriate defenses that Court
decisions have recognized.

Section 3---Amendments to the ADA of 1990\
This section, and its various subsections, includes the substantive body
of the ADA Restoration Act, which amends specific provisions of the ADA.

*Subsection (a)* revises references in the ADA to discrimination
"against an individual with a disability" to refer instead to
discrimination "on the basis of disability." This change recognizes the
social conception of disability and rejects the notion of a rigidly
restrictive protected class.

*Subsection (b)* revises certain of the congressional findings in the
ADA. Paragraph (1) revises the finding in the ADA that provided a rough
estimate of the number of people having actual disabilities, a figure
that a majority of the Supreme Court misinterpreted as evidence that
Congress intended the coverage of the Act to be narrowly circumscribed.
The revised finding stresses that normal human variation occurs across a
broad spectrum of human abilities and limitations, and makes it clear
that all Americans are potentially susceptible to discrimination on the
basis of disability, whether they actually have physical or mental
impairments and regardless of the degree of any such impairment.
Paragraph (2) revises the wording of the ADA finding regarding the
history of purposeful unequal treatment suffered by people with certain
types or categories of disabilities. Paragraphs (3) and (4) add a new
finding that incorporates a social concept of disability and
discrimination on the basis of disability.

*Subsection (c)* revises some of the definitions used in the ADA.
Paragraph (1) amends the definition of the term "disability" to clarify
that it shall not be construed narrowly and legalistically by drawing
fine technical distinctions based on relative differences in degrees of
impairment, instead of focusing on how the person is perceived and
treated. This approach rejects the medical model of disability that
categorizes people because of their supposedly intrinsic limitations,
without reference to social context and socially imposed barriers, and
to individual factors such as compensatory techniques and personal
strengths, goals, and motivation. The second part, headed
"Construction," invalidates the Supreme Court's rulings in *Sutton v.
United Airlines*, *Murphy v. United Parcel Service*, and *Albertson's,
Inc. v. Kirkingburg* by clarifying that mitigating measures, such as
medications, assistive devices, and compensatory mechanisms shall not be
considered in determining whether an individual has a disability.

Paragraphs (2) and (3) add definitions of the terms "physical or mental
impairment," "perceived physical or mental impairment," and "record of
physical or mental impairment" to the statutory language. These
definitions are derived from current ADA regulations, and were
recommended for inclusion in NCD's original 1988 version of the ADA.

*Subsection (d)* clarifies that the ADA's "direct-threat" defense
applies to customers, clients, passersby, and other people who may be
put at risk by workplace activities, but, contrary to the Court's ruling
in *Chevron U.S.A. Inc. v. Echazabal*, not to the worker with a
disability. The latter clarification returns the scope of the
direct-threat defense to the precise dimensions in which it was
established in the express language of the ADA as enacted.

*Subsection (e)* restores the carefully crafted standard of undue
hardship as the sole criterion for determining the reasonableness of an
otherwise effective accommodation.

*Subsection (f)* clarifies that ADA employment rights of individuals
with disabilities, including the opportunity to be reassigned to a
vacant position as a reasonable accommodation, are not to take a
backseat to rights of other employees under a seniority system or
collective bargaining agreement. In addition, covered entities are
directed to incorporate recognition of ADA rights in future collective
bargaining agreements.

*Subsection (g)* adds new subsections to the Remedies provision of Title
II of the ADA. The first restores the possibility of recovering punitive
damages available to ADA plaintiffs who prove they have been subjected
to intentional discrimination, an opportunity that was foreclosed by the
Supreme Court in *Barnes v. Gorman*. The second added subsection
underscores the fact that other remedies, but not punitive damages, are
available to ADA plaintiffs who prove that they have been subjected to
"disparate impact" discrimination. The third new subsection establishes
that intentionally refusing to comply with certain requirements of Title
II of the ADA and the Rehabilitation Act, including accessibility
requirements, auxiliary aids requirements, communication access
requirements, and the prohibition on blanket exclusions in eligibility
criteria and qualification standards, constitutes engaging in unlawful
intentional discrimination.

*Subsection (h)* provides that the provisions of the Act are to be
liberally construed to advance its remedial purposes. To counter the
Court's ruling that eligibility for ADA protection should
be "interpreted strictly to create a demanding standard for qualifying"
(*Toyota Motor Manufacturing, Kentucky, Inc. v. Williams*), another
provision declares that the elements of the definition of "disability"
are to be interpreted broadly. In addition, the subsection provides that
"discrimination" is to be construed broadly to include the various forms
in which discrimination on the basis of disability occurs. The
subsection adds provisions that direct the attorney general, the Equal
Employment Opportunity Commission, and the Secretary of Transportation
to issue regulations implementing the "ADA Restoration Act," and
establish that properly issued ADA regulations are entitled to deference
in administrative and judicial proceedings.

*Subsection (i)* corrects the ruling of the Supreme Court in *Buckhannon
Board and Care Home, Inc. v. West Virginia Department of Health and
Human Resources*, which rejected the catalyst theory in determining
eligibility of ADA plaintiffs to attorney's fees, by reinstating the
catalyst theory.

Section 4---Effective Date\
This section provides that the Act and the amendments it makes shall
take effect upon enactment, and shall apply to cases that are pending
when it is enacted or that are filed thereafter.

The ADA Restoration Act of 2004: A Draft Bill

To amend the Americans with Disabilities Act (ADA) of 1990 to restore
the broad scope of protection and the remedies available under the Act,
and to clarify the inconsistency with the Act of certain defenses.

*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 Restoration Act of 2004."

Section 2.---Findings and Purposes.\
(a) Findings.---The Congress finds that ---

\(1\) in enacting the ADA of 1990, Congress intended that the Act
"establish a clear and comprehensive prohibition of discrimination on
the basis of disability," and provide broad coverage and vigorous and
effective remedies without unnecessary and obstructive defenses;

\(2\) some decisions and opinions of the Supreme Court have unduly
narrowed the broad scope of protection afforded in the ADA, have
eliminated or narrowed remedies meant to be available under the Act, and
have recognized certain defenses that run counter to the purposes of the
Act;

\(3\) in enacting the ADA, Congress recognized that physical and mental
impairments are natural and normal parts of the human experience that in
no way diminish a person's right to fully participate in all aspects of
society, but Congress also recognized that people with physical or
mental impairments having the talent, skills, abilities, and desire to
participate in society are frequently precluded from doing so because of
prejudice, antiquated attitudes, or the failure to remove societal and
institutional barriers;

\(4\) Congress modeled the ADA definition of disability on that of
Section 504 of the Rehabilitation Act of 1973, which had to the time of
the ADA's enactment been construed broadly to encompass both actual and
perceived limitations, and limitations imposed by society; the broad
conception of the definition had been underscored by the Supreme Court's
statement in its decision in *School Board of Nassau County v. Arline*,
480 U.S. 273, 284 (1987), that the Section 504 definition "acknowledged
that society's myths and fears about disability and disease are as
handicapping as are the physical limitations that flow from actual
impairment";

\(5\) in adopting the Section 504 concept of disability in the ADA,
Congress understood that adverse action based on a person's physical or
mental impairment might have nothing to do with any limitations caused
by the impairment itself;

\(6\) instead of following congressional expectations that disability
would be interpreted broadly in the ADA, the Supreme Court has ruled, in
*Toyota Motor Manufacturing, Kentucky, Inc. v. Williams*, 534 U.S. 184,
197 (2002), that the elements of the definition "need to be interpreted
strictly to create a demanding standard for qualifying as disabled,"
and, consistent with that view, has narrowed the application of the
definition in various ways;

\(7\) contrary to explicit congressional intent expressed in the ADA
committee reports, the Supreme Court has eliminated from the Act's
coverage individuals who have mitigated the effects of their impairments
through the use of such measures as medication and assistive devices;

\(8\) contrary to the expectations of Congress in enacting the ADA, the
Supreme Court has rejected the "catalyst theory" in the awarding of
attorney's fees and litigation costs under the Act, and has ruled that
punitive damages may not be awarded in private suits under Section 202
of the Act;

\(9\) contrary to congressional intent and the express language of the
ADA, the Supreme Court has recognized the defense that a worker with a
disability could pose a direct threat to her or his own health or
safety;

\(10\) contrary to carefully crafted language in the ADA, the Supreme
Court has recognized a reasonableness standard for reasonable
accommodation distinct from the undue hardship standard that Congress
had imposed;

\(11\) contrary to congressional intent, the Supreme Court has made the
reasonable accommodation rights of workers with disabilities under the
ADA subordinate to seniority rights of other employees; and

\(12\) legislation is necessary to return the ADA to the breadth of
coverage, the array of remedies, and the finely calibrated balance of
standards and defenses Congress intended when it enacted the Act.

\(b\) Purposes.---The purposes of this Act are ---

\(1\) to effect the ADA's objectives of providing "a clear and
comprehensive national mandate for eliminating discrimination" and
"clear, strong, and enforceable standards addressing discrimination" by
restoring the broad scope of protection and the remedies available under
the ADA, and clarifying the inconsistency with the Act of certain
defenses;

\(2\) to respond to certain decisions of the Supreme Court that have
narrowed the class of people who can invoke the protection from
discrimination the ADA provides, reduced the remedies available to
successful ADA claimants, and recognized or permitted defenses that run
counter to ADA objectives;

\(3\) to reinstate original congressional intent regarding the
definition of disability by clarifying that ADA protection is available
for all individuals who are subjected to adverse treatment based on
actual or perceived impairment, or are adversely affected by prejudiced
attitudes, such as myths, fears, ignorance, or stereotypes concerning
disability or particular disabilities, or by the failure to remove
societal and institutional barriers;

\(4\) to restore the full array of remedies available under the ADA;

\(5\) to ensure that the rights afforded by the ADA are not subordinated
by paternalistic and misguided attitudes and false assumptions about
what a person with a physical or mental impairment can do without
endangering the individual's own personal health or safety;

\(6\) to ensure that the rights afforded by the ADA are not subordinated
to seniority rights of other employees in regard to an otherwise vacant
job position to which the individual requires transfer as a reasonable
accommodation; and

\(7\) to ensure that the carefully crafted standard of undue hardship as
a limitation on reasonable accommodation rights afforded by the ADA
shall not be undermined by recognition of a separate and divergent
reasonableness standard.

Section 3.---Amendments to the ADA of 1990.\
(a) Discrimination.---References in the ADA to discrimination "against
an individual with a disability" or "against individuals with
disabilities" shall be replaced by references to discrimination "on the
basis of disability" at each and every place that such references occur.

\(b\) Findings.---Section 2(a) of the ADA of 1990 (42 U.S.C. 12101(a))
is amended---

\(1\) by striking the current subsection (1) and replacing it with the
following:

"(1) though variation in people's abilities and disabilities across a
broad spectrum is a normal part of the human condition, some individuals
have been singled out and subjected to discrimination because they have
conditions considered disabilities by others; other individuals have
been excluded or disadvantaged because their physical or mental
impairments have been ignored in the planning and construction of
facilities, vehicles, and services; and all Americans run the risk of
being discriminated against because they are misperceived as having
conditions they may not actually have or because of misperceptions about
the limitations resulting from conditions they do have";

\(2\) by striking the current subsection (7) and replacing it with the
following:

"(7) some groups or categories of individuals with disabilities have
been subjected to a history of purposeful unequal treatment, have had
restrictions and limitations imposed upon them because of their
impairments, and have been relegated to positions 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;
classifications and selection criteria that are based on prejudice,
ignorance, myths, irrational fears, or stereotypes about disability
should be strongly disfavored, subjected to skeptical and meticulous
examination, and permitted only for highly compelling reasons";

\(3\) by striking the period (".") at the end of the current subsection
(9) and replacing it with "; and"; and

\(4\) by adding after the current subsection (9) the following new
subsection:

"(10) discrimination on the basis of disability is the result of the
interaction between an individual's actual or perceived impairment and
attitudinal, societal, and institutional barriers; individuals with a
range of actual or perceived physical or mental impairments often
experience denial or limitation of opportunities resulting from
attitudinal barriers, including negative stereotypes, fear, ignorance,
and prejudice, in addition to institutional and societal barriers,
including architectural, transportation, and communication barriers, and
the refusal to make reasonable modifications to policies, practices, or
procedures, or to provide reasonable accommodations or auxiliary aids
and services."

\(c\) Definitions.---Section 3 of the ADA of 1990 (42 U.S.C. 12102) is
amended---

\(1\) by striking the current subsection (2) and replacing it with the
following:

"(2) Disability.

"(A) In General.---The term "disability" means, with respect to an
individual---

\(i\) a physical or mental impairment;

\(ii\) a record of a physical or mental impairment; or

\(iii\) a perceived physical or mental impairment.

"(B) Construction.---

\(i\) The existence of a physical or mental impairment, or a record or
perception of a physical or mental impairment, shall be determined
without regard to mitigating measures;

\(ii\) The term "mitigating measure" means any treatment, medication,
device, or other measure used to eliminate, mitigate, or compensate
for the effect of an impairment, and includes prescription and other
medications, personal aids and devices (including assistive technology
devices and services), reasonable accommodations, or auxiliary aids and
services; and

\(iii\) actions taken by a covered entity because of a person's use of a
mitigating measure or because of a side effect or other consequence of
the use of such a measure shall be considered 'on the basis of
disability.'"

\(2\) by redesignating the current subsection (3) as subsection (6); and

\(3\) by adding after the current subsection (2) the following new
subsections:

"(3) Physical or mental impairment.---The term "physical or mental
impairment" means---

"(A) any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or

\(B\) any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities.

"(4) Record of physical or mental impairment.---The terms "record of a
physical or mental impairment" or "record of impairment" means having a
history of, or having been misclassified as having, a physical or mental
impairment.

"(5) Perceived physical or mental impairment.---The terms "perceived
physical or mental impairment" or "perceived impairment" mean being
regarded as having or treated as having a physical or mental
impairment."

\(d\) Direct threat.---Subsection 101(3) of the ADA of 1990 (42 U.S.C.
12111(3)) is amended---

\(1\) by redesignating the current definition as part (A)--- In general;
and

\(2\) by adding after the redesignated part (A) a new part (B) as
follows:

"(B) Construction.---The term "direct threat" includes a significant
risk of substantial harm to a customer, client, passerby, or other
person that cannot be eliminated by reasonable accommodation. Such term
does not include risk to the particular applicant or employee who is or
is perceived to be the source of the risk."

\(e\) Reasonable accommodation.---Subsection 101(9) of the ADA of 1990
(42 U.S.C. 12111(9)) is amended---

\(1\) by redesignating the current definition as part (A)--- Example s
of types of accommodations.; and

\(2\) by adding after the redesignated part (A) a new part (B) as
follows:

"(B) Reasonableness.---A reasonable accommodation is a modification
or adjustment that enables a covered entity's employee or applicant with
a disability to enjoy equal benefits and privileges of employment or of
a job application, selection, or training process, provided that---

\(i\) the individual being accommodated is known by the covered entity
to have a mental or physical limitation resulting from a disability, is
known by the covered entity to have a record of a mental or physical
limitation resulting from a disability, or is perceived by the covered
entity as having a mental or physical limitation resulting from a
disability;

\(ii\) without the accommodation, such limitation will prevent the
individual from enjoying such equal benefits and privileges; and

\(iii\) the covered entity may establish, as a defense, that a
particular accommodation is unreasonable by demonstrating that the
accommodation would impose an undue hardship on the operation of the
business of such covered entity."

\(f\) Nonsubordination.---Section 102 of the ADA of 1990 (42 U.S.C.
12112) is amended by adding after the current subsection (c) a new
subsection as follows:

"(d) Nonsubordination.--- A covered entity's obligation to comply with
this Title is not affected by any inconsistent term of any collective
bargaining agreement or seniority system. The rights of an employee with
a disability under this Title shall not be subordinated to seniority
rights of other employees in regard to an otherwise vacant job position
to which the individual with a disability requires transfer as a
reasonable accommodation. Covered entities under this Title shall
include recognition of ADA rights in future collective bargaining
agreements."

\(g\) Remedies.---Section 203 of the ADA of 1990 (42 U.S.C. 12133) is
amended---

\(1\) by redesignating the current textual provision as subsection
(a)--- In general ., and adding at the beginning of the text of
subsection (a) the phrase "Subject to subsections (b), (c), and (d),";
and

\(2\) by adding, after the redesignated subsection (a), new subsections
as follows:

"(b) Claims based on proof of in tent ional discrimination.---In an
action brought by a person aggrieved by discrimination on the basis of
disability (referred to in this section as an 'aggrieved person') under
Section 202 of this Act, or under Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. 794), against an entity covered by those provisions
who has engaged in unlawful intentional discrimination (not a practice
that is unlawful because of its disparate impact) prohibited under those
sections (including their implementing regulations), an aggrieved person
may recover equitable and legal relief (including compensatory and
punitive damages) and attorney's fees (including expert fees) and costs.

"(c) Claims based on disparate impact .---In an action brought by an
'aggrieved person' under Section 202 of this Act, or under Section 504
of the Rehabilitation Act of 1973 (29 U.S.C. 794), against an entity
covered by those provisions who has engaged in unlawful disparate
impact discrimination prohibited under those sections (including their
implementing regulations), an aggrieved person may recover equitable
relief and attorney's fees (including expert fees) and costs.

"(d) Construction.---In addition to other actions that constitute
unlawful intentional discrimination under subsection (b), a covered
entity engages in such discrimination when it intentionally refuses to
comply with requirements of Section 202 of this Act, or of Section 504
of the Rehabilitation Act of 1973 (29 U.S.C. 794), or of their
implementing regulations, by willfully, unlawfully, materially, and
substantially---

\(1\) failing to meet applicable program and facility accessibility
requirements for existing facilities, new construction and alterations;

\(2\) failing to furnish appropriate auxiliary aids and services;

\(3\) failing to ensure effective communication access; or

\(4\) imposing discriminatory eligibility criteria or employment
qualification standards that engender a blanket exclusion of individuals
with a particular disability or category of disability."

\(h\) Construction.---Section 501 of the ADA of 1990 (42 U.S.C. 12201)
is amended by adding after the current subsection (d) the following new
subsections:

"(e) Supportive construction.---In order to ensure that this Act
achieves its objective of providing a comprehensive prohibition of
discrimination on the basis of disability, discrimination that is
pervasive in America, the provisions of the Act shall be flexibly
construed to advance its remedial purposes. The elements of the
definition of "disability" shall be interpreted broadly to encompass
within the Act's protection all persons who are subjected to
discrimination on the basis of disability. The term "discrimination"
shall be interpreted broadly to encompass the various forms in which
discrimination on the basis of disability occurs, including blanket
exclusionary policies based on physical, mental, or medical standards
that do not constitute legitimate eligibility requirements under the
Act; the failure to make a reasonable accommodation, to modify policies
and practices, and to provide auxiliary aids and services, as required
under the Act; adverse actions taken against individuals based on actual
or perceived limitations; disparate, adverse treatment of individuals
based on disability; and other forms of discrimination prohibited in the
Act.

"(f) Regulations implementing the ADA Restoration Act.---Not later than
180 days after the date of enactment of The ADA Restoration Act of 2004,
the attorney general, the Equal Employment Opportunity Commission, and
the Secretary of Transportation shall promulgate regulations in an
accessible format that implement the provisions of the ADA Restoration
Act.

"(g) Deference to regulations.---Duly issued federal regulations for the
implementation of the ADA, including provisions implementing and
interpreting the definition of disability, shall be entitled to
deference by administrative bodies or officers and courts hearing any
action brought under the Act."

\(i\) Attorney's fees.---Section 505 of the ADA of 1990 (42 U.S.C.
12205) is amended by redesignating the current textual provision as
subsection (a)--- In general, and adding additional subsections as
follows:

"(b) Definition of prevailing party---The term \`prevailing party'
includes, in addition to a party who substantially prevails through a
judicial or administrative judgment or order, or an enforceable written
agreement, a party whose pursuit of a nonfrivolous claim or defense was
a catalyst for a voluntary or unilateral change in position by the
opposing party that provides any significant part of the relief sought.

"(c) Relationship to other laws---

\(1\) Special criteria for prevailing defendants---If any other Act of
Congress, or any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, or of any
judicial or administrative rule, which addresses the recovery of
attorney's fees, requires a defendant, but not a plaintiff, to satisfy
certain different or additional criteria to qualify for the recovery of
attorney's fees, subsection (b) shall not affect the requirement that
such defendant satisfy such criteria.

"(2) Special criteria unrelated to prevailing---If an Act, ruling,
regulation, interpretation, or rule described in paragraph (1) requires
a party to satisfy certain criteria, unrelated to whether or not such
party has prevailed, to qualify for the recovery of attorney's fees,
subsection (b) shall not affect the requirement that such party satisfy
such criteria."

Section 4.---Effective Date.\
This Act and the amendments made by this Act shall take effect upon
enactment and shall apply to any case pending or filed on or after the
date of enactment of this Act.

[^1]: *Courts Continuing Narrow Interpretation of \"Disability,\" Case
    Study Shows*, [Disability Compliance Bull.]{.smallcaps} Mar. 27,
    1997, at 10. See also, Amy L. Allbright, *ABA Special Feature: 2003
    Employment Decisions Under the ADA Title I - Survey Update*, 28
    [Mental & Physical L. Rep.]{.smallcaps} 319, 320 (2004) (\"A clear
    majority of the employer wins in this survey were due to \[the\]
    employees\' failure to show that they had a protected
    disability.\").

[^2]: 42 U.S.C. § 12101.

[^3]: *National Council on Disability, Equality of Opportunity : The
    Making of the Americans with Disabilities Act* at 184 (1997).

[^4]: Statement by Vice President Al Gore, December 14, 1998 , quoted in
    the Presidential Task Force on Employment of Adults with
    Disabilities, *Working on Behalf of Americans with Disabilities:
    President Clinton and Vice President Gore: Goals and
    Accomplishments* at 17.

[^5]: George W. Bush, *Presidential Proclamation on the Anniversary of
    the Americans with Disabilities Act, 2002* ( July 26, 2002 ).

[^6]: NCD, *Promises to Keep: A Decade of Federal Enforcement of the
    Americans with Disabilities Act* at 1 (2000).

[^7]: NCD, *Voices of Freedom: America Speaks Out on the ADA* at 26
    (1995).

[^8]: NCD, *Voices of Freedom: America Speaks Out on the ADA* at 26
    (1995).

[^9]: George W. Bush, *Presidential Proclamation on the Anniversary of
    the Americans with Disabilities Act, 2002* ( July 26, 2002 ).

[^10]: See Mary Crossley, "The Disability Kaleidoscope," 74 *Notre Dame
    Law Review* 621, 622 (1999).

[^11]: *Tudyman v. United Airlines* , 608 F. Supp. 739 (C.D.Cal. 1984).

[^12]: H.R. Rep. No. 101-485, pt. 3, at 30 (1990).

[^13]: *Morrow v. City of Jacksonville* , 941 F. Supp. 816, 823 n. 3
    (E.D.Ark. 1996).

[^14]: See, e.g., *Stone v. St. Joseph's Hospital of Parkersburg*, 538
    S.E.2d 389, 400-402, 404 (W.Va. 2000), in which the Supreme Court of
    West Virginia, after acknowledging that the state law had been
    amended in 1989 to adopt the federal three-prong definition of
    disability, chose to reject the "restrictive approach" of federal
    interpretation of the definition, endorsing an "independent approach
    \... not mechanically tied to federal disability discrimination
    jurisprudence." The court also cited a number of cases from other
    states that had interpreted the definition of disability more
    expansively than under federal nondiscrimination laws. *Id.* at 405
    and n. 23. Likewise, in *Dahill v. Police Department of Boston*, 434
    Mass. 233, 748 N.E.2d 956 (2001), the Massachusetts Supreme Judicial
    Court embraced virtually every argument advanced by disability
    rights advocates that the United States Supreme Court had rejected
    in *Sutton v. United Airlines*, and ruled that mitigating measures
    should not be considered in determining whether an individual has a
    "handicap" under Massachusetts antidiscrimination law. According to
    the *Dahill* Court, the public policy underlying the
    antidiscrimination statute supported its interpretation that
    mitigating measures should be excluded, while embracing the *Sutton*
    standard would "exclude\[ \] from the statute's protection numerous
    persons who may mitigate serious physical or mental impairments to
    some degree, but who may nevertheless need reasonable accommodations
    to fulfill the essential functions of a job." *Id.* at 240 and n.
    10.

[^15]: See, e.g., *Granovsky v. Canada*, \[2000\] 1 S.C.R. 703, in which
    the Supreme Court of Canada expressly rejected the restrictive
    approach of the U.S. Supreme Court in *Sutton v. United Airlines*,
    noted the "ameliorative purpose" and "remedial component" of the
    disability nondiscrimination provision of the Canadian Charter of
    Rights and Freedoms, and adopted an approach in which the focus is
    "not on the impairment as such, nor even any associated functional
    limitations, but is on the problematic response of the \[defendant\]
    state to either or both of these circumstances." The Court added
    that it was the alleged discriminatory action "that stigmatizes the
    impairment, or which attributes false or exaggerated importance to
    the functional limitations (if any) \..." Similarly, in *Quebec v.
    Canada*, \[2000\] 1 S.C.R. 665, the Supreme Court of Canada noted
    that "\[h\]uman rights legislation is \[to be\] given a liberal and
    purposive interpretation," and ruled, "The objectives of the
    Charter, namely the right to equality and protection against
    discrimination, cannot be achieved unless we recognize that
    discriminatory acts may be based as much on perception and myths and
    stereotypes as on the existence of actual functional limitations.
    Since the very nature of discrimination is often subjective,
    assigning the burden of proving the objective existence of
    functional limitations to a victim of discrimination would be to
    give that person a virtually impossible task. Functional limitations
    often exist only in the mind of other people, in this case that of
    the employer." The Court ruled that "a 'handicap,' therefore,
    includes ailments which do not in fact give rise to any limitation
    or functional disability."

[^16]: Some states, such as California and Rhode Island , have amended
    their disability nondiscrimination statutes to reject federal case
    law narrowing the scope of individuals protected. Others, such as
    Connecticut , New Jersey , and New York have never adopted the rigid
    and stringent concept of "disability" consisting of an "impairment"
    which "substantially limits" one or more major life activities. For
    a discussion of state laws that have deviated from the restrictive
    federal model, see NCD's paper titled *Defining "Disability" in a
    Civil Rights Context: The Courts' Focus on the Extent of Limitations
    as Opposed to Fair Treatment and Equal Opportunity.* Paper No. 6 of
    NCD's *Policy Brief Series: Righting the ADA Papers* can be found at
    <http://www.ncd.gov/newsroom/publications/2003/policybrief.htm>.

[^17]: For example, the definition of disability provisions of
    Australia's Disability Discrimination Act of 1992 (4.(1)) and of
    Ireland's Employment Equality Act (1998) (2), both of which were
    adopted after the ADA was enacted, are framed in very broad terms
    that encompass not only a wide variety of currently existing
    conditions, but also include any condition that previously existed
    but no longer does, that "may exist in the future," or that "is
    imputed to a person."

[^18]: H.R. Rep. No. 101-485, pt. 2 at 52 (1990).

[^19]: H.R. Rep. No. 101-485, pt. 3 at 28 (1990).

[^20]: *Todd v. Academy Corporation*, 57 F. Supp. 2d 448, 453-54 (S.D.
    Tex. 1999).

[^21]: In light of the courts' failure to appreciate and apply the
    social model of disability discrimination, NCD's *Righting the ADA*
    report suggests that the social model should be made explicit by
    incorporating it as an additional ADA finding as follows:

    > Discrimination on the basis of disability is the result of the
    > interaction between an individual's actual or perceived impairment
    > and attitudinal, societal, and institutional barriers; individuals
    > with a range of actual or perceived physical or mental impairments
    > often experience denial or limitation of opportunities resulting
    > from attitudinal barriers, including negative stereotypes, fear,
    > ignorance, and prejudice, in addition to institutional and
    > societal barriers, including architectural, transportation, and
    > communication barriers, and the refusal to make reasonable
    > modifications to policies, practices, or procedures, or to
    > provide reasonable accommodations or auxiliary aids and services.
    >
    > *Id.* at 109.

[^22]:     ^?^ Robert L. Burgdorf Jr. *\"Substantially Limited\"
    Protection from Disability Discrimination: The Special Treatment
    Model and Misconstructions of the Definition of Disability*, 42
    [Villanova Law Review]{.smallcaps} 409 (1997).

[^23]:     ^?^ *Id.* at 534-536 (footnotes omitted).

[^24]:     ^?^ U.S. Commission on Civil Rights, *Accommodating the
    Spectrum of Individual Abilities* (1983), at p. 87.

[^25]:     ^?^ See, for example, National Council on Disability, *The
    Americans with Disabilities Act Policy Brief Series: Righting the
    ADA, No. 5, \"Negative Media Portrayals of the ADA\"* at
    http://www.ncd.gov/newsroom/publications/2003/policybrief.htm.

[^26]:     ^?^ *Accommodating the Spectrum of Individual Abilities*, p.
    95, n. 17).

[^27]:     ^?^ Richard K. Scotch, *Models of Disability and the
    Americans with Disabilities Act*, 21 [Berkeley Journal of Employment
    and Labor Law]{.smallcaps} 213, 214-15 (2000).

[^28]:     ^?^ Linda Hamilton Krieger, *Afterword: Socio-Legal
    Backlash*, 21 [Berkeley Journal of Employment and Labor
    Law]{.smallcaps} 476, 480-81 (2000).

[^29]:     ^?^ See, for example, National Council on Disability, *The
    Americans with Disabilities Act Policy Brief Series: Righting the
    ADA, No. 5, \"Negative Media Portrayals of the ADA\"* at
    http://www.ncd.gov/newsroom/publications/2003/policybrief.htm.

[^30]:     ^?^ National Council on Disability, *Toward Independence*,
    Appendix of Topic Papers (1986) at pp. A-22 to A-23.

[^31]:     ^?^ *Righting the ADA* at p. 109.

[^32]:     ^?^ *Id.*

[^33]: *Toyota Motor Manufacturing, Kentucky, Inc. v. Williams*, 534
    U.S. 184 , 194 (2002).

[^34]: [H.R. Rep. No.]{.smallcaps} 101-485, pt. 2, at 53 (1990).

[^35]: [S. Rep. No.]{.smallcaps} 101-116 at 24 (1989).

[^36]: *Id.*

[^37]: [H.R. Rep. No.]{.smallcaps} 101-485, pt. 2, at 53 (1990); [S.
    Rep. No.]{.smallcaps} 101-116 at 23-24 (1989); [H.R. Rep.
    No.]{.smallcaps} 101-485, pt. 3, at 30 (1990).

[^38]: [S. Rep. No.]{.smallcaps} 116, 101st Cong., 1st Sess. 24 (1989)
    (emphasis added).

[^39]: *Id.*

[^40]: *Id.*

[^41]: [H.R. Rep. No.]{.smallcaps} 101-485, pt. 2, at 53B54 (1990).

[^42]: [H.R. Rep. No.]{.smallcaps} 101-485, pt. 3, at 30 (emphasis
    added).

[^43]: *Id.* at 30B31.

[^44]: 29 C.F.R. \' 1630.2(o)(1)(ii) (1993). Similar definitions are
    provided for accommodations in the job application process and in
    regard to job benefits and privileges. 29 C.F.R. \' 1630.2(o)(1)(i)
    (1993) ("Modifications or adjustments to a job application process
    that enable a qualified applicant with a disability to be considered
    for the position such qualified applicant desires"); 29 C.F.R. \'
    1630.2(o)(1)(iii) (1993) ("Modifications or adjustments that enable
    a covered entity's employee with a disability to enjoy equal
    benefits and privileges of employment as are enjoyed by its other
    similarly situated employees without disabilities.").

[^45]: 29 C.F.R. 414B15 (app. to pt. 1630) (commentary on \' 1630.9)
    (1993).

[^46]: [H.R. Rep. No.]{.smallcaps} 101-485 pt. 2, at 65 (1990); [S. Rep.
    No.]{.smallcaps} 101-116 at 34 (1989).

[^47]: *Id.*

[^48]: *Id.*

[^49]: [H.R. Rep. No.]{.smallcaps} 101-485 pt. 2, at 66 (1990); [S. Rep.
    No.]{.smallcaps} 101-116 at 35 (1989).

[^50]: 29 C.F.R. 414 (app. to pt. 1630) (commentary on \' 1630.9)
    (1993).

[^51]: *Id.*

[^52]: 29 C.F.R. 414 (app. to pt. 1630) (commentary on \' 1630.9)
    (1993); [H.R. Rep. No.]{.smallcaps} 101-485 pt. 2, at 66 (1990); [S.
    Rep. No.]{.smallcaps} 101-116 at 35 (1989).

[^53]: 29 C.F.R. 414 (app. to pt. 1630) (commentary on \'1630.9) (1993);
    [H.R. Rep. No.]{.smallcaps} 101-485 pt. 2, at 66-67 (1990); [S. Rep.
    No.]{.smallcaps} 101-116 at 35 (1989).