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ADA RESTORATION ACT OF 2007

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 3195

OCTOBER 4, 2007

Serial No. 110–59

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

OCTOBER 4, 2007

Page 

THE BILL 

H.R. 3193, the ‘‘ADA Restoration Act of 2007’’ ..................................................... 2

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 14

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties, and Chairman, Committee on the Judiciary ....... 15

WITNESSES 

The Honorable Steny H. Hoyer, a Representative in Congress from the State 

of Maryland, and Majority Leader, U.S. House of Representatives 

Oral Testimony ..................................................................................................... 16

Ms. Cheryl Sensenbrenner, Chair, American Association of People with Disabilities 

Oral Testimony ..................................................................................................... 21

Prepared Statement .............................................................................................

2

Mr. Stephen C. Orr 

Oral Testimony ..................................................................................................... 26

Prepared Statement ............................................................................................. 27

Mr. Michael C. Collins, Executive Director, National Council on Disability 

Oral Testimony ..................................................................................................... 37

Prepared Statement ............................................................................................. 40

Mr. Lawrence Z. Lorber, U.S. Chamber of Commerce 

Oral Testimony ..................................................................................................... 50

Prepared Statement ............................................................................................. 52

Ms. Chai R. Feldblum, Professor, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 62

Prepared Statement ............................................................................................. 64

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statements of Charles Littleton ............................................................. 31

Prepared Statements of Darbara Littleton ............................................................ 32

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 85

(1)

ADA RESTORATION ACT OF 2007

THURSDAY, OCTOBER 4, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:11 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Davis, Wasserman 

Schultz, Franks, and Issa. 

Also present: Representative Sensenbrenner. 

Staff present: David Lachmann, Subcommittee Chief of Staff; 

Heather Sawyer, Majority Counsel; Susana Gutierrez, Professional 

Staff Member; and Paul Taylor, Minority Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. 

Today’s hearing will examine the current state of the Americans 

with Disabilities Act and H.R. 3195, the ‘‘ADA Restoration Act of 

2007.’’

[The bill, H.R. 3195, follows:]

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Mr. NADLER. The Chair recognizes himself for 5 minutes for an 

opening statement. 

The Americans with Disabilities Act is a success story, but it is 

also a promise that has yet to be fulfilled. Its coverage and its enforcement do not ensure full access to American life. I believe we 

have waited long enough and we really cannot afford to let these 

wrongs go unaddressed longer. 

Although it often gets lost in the debate, the ADA is a civil rights 

bill. It is often treated as if it is something else. That is because 

unlike many civil rights laws, this one requires people to spend 

money, to make an effort to do what is right. 

I have very little sympathy for complaints of this nature. No 

business would make its customers climb a rope to make a purchase. They provide elevators and a variety of other means to bring 

customers in. Yet when it comes to people who need other ways to 

enter a building, all of a sudden, it’s a huge problem. That is a 

wrong perception. 

The same is true in employment. A society is poorer when it fails 

to take full advantage of the talents of all of its members. 

If not in the name of simple decency and justice, then in the 

name of rational self-interest, we must ensure that the promise of 

the ADA is fulfilled now. Unfortunately, the Supreme Court has 

gone out of its way to undermine Congress’ clear intent. Somehow 

the Court has erected a monstrous Catch-22, in which an individual can face discrimination on the basis of an actual or perceived disability and yet be deemed not sufficiently disabled to trigger a legal remedy under the ADA. 

That defies logic, it defies reason and it defies the plain text of 

the ADA. Where in the act does it say, as the Court has found, that 

mitigating measures must be taken into account when determining 

whether an individual is disabled? 

In fact, Congress said just the opposite. The report on the ADA 

said, ‘‘whether a person has a disability should be assessed without 

regard to the availability of mitigating measures. . . . For example, a person who is hard of hearing is substantially limited in the 

major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. Likewise, persons with impairments such as epilepsy or diabetes, which substantially limit a 

major life activity, are covered under the first prong of the definition of disability, even if the effects of the impairment are controlled by medication.’’

Somehow Congress wasn’t clear enough for the Court. As a result, people whose vision is correctible with glasses or whose epilepsy can be controlled with medication are not considered disabled 

under the Court ruling. So we are in the odd position in which 

Congress says that a person is disabled, the ADA says they are disabled, they suffer discrimination because they are disabled, but the 

Supreme Court says they cannot get to Court because they are not 

disabled. 

The ADA Restoration Act, which was introduced by our distinguished majority leader, and I always am interested when we see 

a bill called the so-and-so restoration act, because it means we 

think the Supreme Court has misinterpreted what Congress said, 

which it often has. But the ADA Restoration Act, which was introVerDate 0ct 09 2002 10:48 Feb 05, 2008 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\CONST\100407\38114.000 HJUD1 PsN: 38114
14

duced by our distinguished majority leader Mr. Hoyer, and which 

has bipartisan support in this Committee, which includes myself, 

the Ranking Member of the Subcommittee, the Chairman of the 

full Committee, is necessary if only to tell the Court that we really 

meant what we said. 

While these changes are long overdue, they are also especially 

timely. Thousands of our men and women in uniform are returning 

home with serious injuries, including the loss of limbs, head trauma, damage to their vision and their hearing and a variety of other 

life-altering injuries. We cannot stand by and allow them to come 

home to face discrimination without a legal remedy. 

Anyone who has ever made a speech about supporting our troops 

should have a special interest in the passage of this bill. We owe 

these young Americans no less. 

I am pleased that we have such distinguished witnesses today 

who will help layout the problem and who will discuss the kinds 

of solutions necessary to ensure that the promise of the ADA is fulfilled. I would also like to take a moment to acknowledge the many 

guests who are here today to attend this hearing. I want the record 

to reflect the enormous grassroots support for this endeavor. 

To assist in the fullest participation possible, the Committee has 

provided for this room to be accessible and for sign language interpreter and closed captioning. I can ensure everyone it wasn’t hard 

at all to arrange. 

I welcome our witnesses. I yield back the balance of my time. 

I would now recognize our distinguished Ranking minority Member, the gentleman from Arizona, Mr. Franks, for his opening statement. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Chairman, I also welcome the majority leader, the distinguished gentleman. I appreciate you being here today, sir. 

Mr. Chairman, let me begin by saying I strongly support the 

Americans with Disabilities Act. For too long members of the disabled community were forced to cope not only with their own disabilities but with the invidious discrimination practiced by others. 

Congress rightfully corrected that wrong in 1990 when it passed 

the Americans with Disabilities Act, with the strong support of 

then-President Bush. 

The ADA defines disability as, ‘‘A physical or mental impairment 

that substantially limits one or more of the major life activities of 

such individual; a record of such impairment or being regarded as 

having such an impairment.’’

In 1999, the Supreme Court handed down three cases on the 

same day that addressed this definition. Those three cases and another more recent case were all decided unanimously or by a 7-2 

vote. In interpreting the scope of the ADA, the Supreme Court 

looked to the Congressional findings codified in the Act which direct its application to 43 million disabled Americans, namely those 

Americans who have an impairment that substantially limits one 

or more of their major life activities. 

The legislation we discuss today would, among other things, 

strike those words from the ADA, and I look forward to exploring 

ramifications of that with the witnesses here today and with the 

15

hope of making sure that H.R. 3195 strikes a just balance in all 

ways. 

In Sutton v. United Airlines, with Justice O’Connor writing the 

majority opinion in which David Souter joined, and with Justice 

Ginsberg concurring in the judgment, the Supreme Court stated, 

‘‘We hold that the determination of whether an individual is disabled should be made with reference to measures that mitigate the 

individuals impairment, including in this instance eyeglasses and 

contact lenses.’’

The Court reasoned as follows, ‘‘Looking at the act as a whole, 

it is apparent that if a person is taking measures to correct for or 

mitigate a physical or mental impairment, the effects of those 

measures, both positive and negative, must be taken into account 

when judging whether that person is, quote, ’substantially limited’ 

in a major life activity and, thus, disabled under the act. A disability exists only where an impairment substantially limits a 

major life activity, not where it might, could or would be substantially limiting if mitigating measures were not taken. To be sure, 

a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is 

corrected, it does not substantially limit a major life activity. 

Whether a person has a disability under the ADA is an individual 

inquiry.’’

Now, I understand that there remain certain concerns regarding 

the effects of Sutton and other Supreme Court decisions, and I am 

a cosponsor of H.R. 3195, but I do want to say that I have some 

concerns that H.R. 3195 as currently drafted may go beyond even 

what the sponsors of the bill are intending, and I hope this will be 

considered as this bill moves through the process. 

Mr. Chairman, I am fortunate to have one of the most productive 

members of my staff, a gentleman by the name of Brian Van Hovel, 

that has Charcot-Marie-Tooth Disease that completely paralyzes 

him except from—he is only able to turn his head. That is the only 

physical capability he has other than his speech. His lungs are 

charged with air and yet he speaks through his computer and is 

literally, truly, one of the most productive members we have of our 

staff. And so I hope that he is listening here today, because in large 

part he is in my heart as we move through these proceedings. 

I look forward to hearing from our witnesses. Again, I welcome 

the majority leader, and I am especially pleased to see my colleague and former Chairman, Jim Sensenbrenner’s wife, Cheryl, 

here with us today. I look forward to hearing from all of you. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

In the interest of proceeding to our witness and mindful of our 

busy schedules, I would ask that other Members submit their 

statements for the record. 

I will withdraw that and recognize the Chairman of the full Committee. 

Mr. CONYERS. It is my pleasure to ask unanimous consent to 

enter my statement into the record, because 17 years ago we 

marched up this Hill and now here we are again, reexamining the 

decisions of the Supreme Court and we are very constructive. 

16

I am proud to be a cosponsor, and I said at this point in my career, Mr. Hoyer, that I would never repeat anything that anybody 

had said before me. The only problem is, I wanted to point out that 

the most active supporter of the Americans with Disabilities Act is 

Cheryl Sensenbrenner, but I was co-opted on that, so I will ask 

unanimous consent to put my statement in the record. 

Thank you very much. 

[The prepared statement of Mr. Conyers is available in the Appendix.] 

Mr. NADLER. Without objection. And I would ask that other 

Members submit their statements for the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing, although the Chair hopes we won’t have to do 

that. 

As we ask questions of our witnesses, the Chair will recognize 

Members in the order they are in the Subcommittee, alternating 

between majority and minority, provided that the Member is 

present when his or her turn arrives. Members who are not present 

when their turn begins will be recognized after the other Members 

have had the opportunity to ask their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 

Our first witness is the Honorable Steny Hoyer, the majority 

leader of the House of Representatives, and importantly the representative of Maryland’s Fifth Congressional District. Now serving 

his 14th term in Congress, he also became the longest-serving 

Member of the U.S. House of Representatives from Maryland in 

history on June 4, 2007. 

Among his other accomplishments, Congressman Hoyer is perhaps best known for guiding the landmark Americans with Disabilities Act to passage. He has continued his leadership in fighting for 

the rights of the disabled. He was elected to the Maryland Senate 

at the age of 27, and just a few years later at the age of 35, he 

was elected president of the Senate, the youngest ever in State history. 

I am pleased to welcome our distinguished colleague to the Subcommittee. Your written statement will be made part of the record 

in its entirety. I would ask you to now summarize your testimony 

in 5 minutes or less. To help you stay within that time, as you 

know, there is a timing light at the table. When 1 minute remains, 

the light will switch from green to yellow, then red when the 5 

minutes are up. 

Now that we have gone through the usual paraphernalia, I am 

glad to recognize the witness and you may proceed. 

TESTIMONY OF THE HONORABLE STENY H. HOYER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND, AND MAJORITY LEADER, U.S. HOUSE OF REPRESENTATIVES 

Mr. HOYER. Thank you very much for this opportunity to appear 

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man Nadler and Ranking Member Franks, thank you very much 

for your remarks and for your co-sponsorship of this legislation. 

The distinguished Chairman of the Committee, John Conyers, 

my good and dear friend, who has been a giant in terms of ensuring that all Americans have their rights observed as the Constitution perceived, was an extraordinarily effective and important leader in the adoption of the Americans with Disabilities Act, working 

with the first President Bush, who signed this legislation. 

And I also want to thank my good friend and cosponsor of this 

legislation, he and I are partners in this effort, Jim Sensenbrenner. 

It has been observed now twice, I will observe a third time, and 

maybe I think I mention it in my remarks as well, that Cheryl Sensenbrenner has been herself a giant in not only the initial adoption 

of the Americans with Disabilities Act but during those 17 years 

that have transpired since that time, been an extraordinarily effective advocate. 

I want to thank the other Members of the Subcommittee for 

being with us as well. 

Let me make an observation at the outset. This legislation essentially adopts the premise to all the courts, Supreme and otherwise, 

perhaps we weren’t as clear as we needed to be on what we clearly 

intended. 

If in fact we weren’t as clear and, therefore, you interpreted it 

differently, then it is essential for us to pass this legislation, to 

clarify what clearly, unequivocally and absolutely was our intent. 

I want to thank you for holding this hearing. Let me assure you 

that one of the things at the outset of my testimony. The purpose 

of this legislation is straightforward and unambiguous. The bill 

does not seek to expand the rights guaranteed under the landmark 

Americans with Disabilities Act. Mr. Franks had expressed that 

concern, and that focused and said, it seeks to clarify the law, restoring the scope of protection available under the ADA, responding 

to Court decisions that have sharply restricted the class of people 

who can invoke protection under the law and reinstating the original congressional intent when the ADA passed. 

Mr. Sensenbrenner and I have talked about that. That is and 

was our intent and continues to be. 

When the first President Bush signed the ADA into law on July 

26, 1990, he hailed it as, ‘‘The world’s first comprehensive declaration of equality for people with disabilities. This landmark civil 

rights law prohibited discrimination against Americans with disabilities in the workplace, public accommodations and other settings. We knew that it would not topple centuries of prejudice overnight. But we believed that it could change attitudes and unleash 

the talents of millions of Americans with disabilities. 

And we were right. Since its enactment, thousands of Americans 

with disabilities have entered the workplace, realizing self-sufficiency for the first time in their lives. However, despite our 

progress, the courts, including the U.S. Supreme Court, have narrowly interpreted the ADA, limiting its scope and undermining its 

intent. That is the purpose of this legislation, to clarify that intent. 

Let me be clear. When we wrote the ADA, we intentionally used 

a definition of disability that was broad, borrowing from an existing definition from the Rehab Act of 1973. We did this because the 

18

courts had generously interpreted this definition in the Rehabilitation Act and we thought using established language could help 

avoid a potentially divisive political debate over the definition of 

disability. Unfortunately, we made a mistake. 

Therefore, we could not have fathomed that people with diabetes, 

epilepsy, heart conditions, cancer, mental illnesses and other disabilities would have their ADA claims denied because with medication they would be considered too functional to meet the definition 

of disabled. Nor could we have fathomed a situation where the individual may be considered too disabled by an employer to get a 

job, but not disabled enough by the courts to be protected by the 

ADA from discrimination. What a contradictory position that would 

have been for the Congress to take. 

The Supreme Court’s decision in Sutton, Kirkingnirg and Murphy in 1999 and Toyota Manufacturing in 2002 are, simply put, 

misinterpretations of what we intended and, in my opinion, of the 

law. 

In Toyota, for example, Justice O’Connor writing for the Court, 

said the terms ‘‘substantially limited’’ and ‘‘major life activities’’ 

need to be ‘‘strictly interpreted to create a demanding standard for 

qualifying as disabled.’’ The Court went on to say, ‘‘Substantially 

limited means to prevent or severely restrict.’’

This was not our intent when Congress passed the ADA. Nor did 

we anticipate that, contrary to our explicit instructions, the Court 

would eliminate from the act’s coverage individuals who had mitigated the effects of their impairment with medication or assistive 

devices, as in Sutton, Murphy and Kirkingburg. 

Again, this is not what Congress intended when it passed the 

ADA. Tony Coehlo mitigates his disability. But for us to have said 

if he mitigates, my failing to employ Tony Coehlo because he is an 

epileptic, but because it is mitigated that the discrimination somehow does not exist, what an absurd result that would be. 

Simply put, the point of the ADA is not disability. It is the prevention of wrongful and unlawful discrimination. Let me give you 

an example. I am not Catholic, but let’s say for the purpose of argument I was Catholic. And let’s say an employer would not hire 

me if I were a Catholic. Only if I could prove I was a Catholic, 

which I was not, would I be able to claim I am being discriminated 

against under the logic of the disability. 

That makes no sense, and what we are doing here is to clarify 

our intent. H.R. 3195 introduced by myself and Congressman Sensenbrenner, the former Chairman of the Judiciary Committee and 

a strong supporter of this legislation when we passed it—he and 

I were partners then—is designed to restore the broad reach of 

ADA that we believe was plain in 1990. 

Among other things, the bill will, first point, amend the definition of disability so that people who Congress originally intended 

to protect from discrimination are covered under the ADA. We 

adopted the original definition, which was broadly interpreted by 

the courts in the Rehab Act, but that has not been the case, which 

is why we have to take this action, to restore, not to change, prevent courts from considering mitigating measures, such as eyeglasses or medication, when determining whether a person qualifies for protection under the law, and in addition modify findings 

19

in the ADA that have been used by the courts to support a narrow 

reading of disability. 

Specifically, this bill strikes the finding pertaining to 43 million 

Americans. We use that figure, Mr. Franks has quoted it again 

today, and as well as deleting that, the finding pertaining to discrete and insular minority. Again, what we are talking about is discrimination against people, against individuals, who are guaranteed under our Constitution equal rights and equal access to opportunity, to life, liberty and the pursuit of happiness. 

Let me conclude by noting that this past July 26 we marked the 

17th anniversary of this landmark law. I believe that its promise 

remains unfulfilled, but very much still within reach. Passage of 

this legislation, H.R. 3195, is imperative, Mr. Chairman and Members of this Committee, to restoring Congressional intent, to 

achieving the ADA’s promise and to creating a society in which 

Americans with disabilities can realize their potential and be the 

assets to this country that we know they can be as well as to themselves. 

Thank you very much, Mr. Chairman, for this opportunity to appear before you. 

By the way, if you ask me any complicated questions, my lawyer, 

as I refer to her, distinguished professor at Georgetown University, 

Chai Feldblum, is here. She will be one of your witnesses, but if 

the questions are tough I will simply turn to her, as I did throughout the course of the consideration of the Americans with Disabilities Act. She did an extraordinary job working with Congressman 

Steve Bartlett, Republican Member of Congress from Texas, elected 

mayor of Dallas, now a distinguished representative in the business community in this city. But I will turn to her for the tough 

ones. 

Mr. NADLER. Thank you very much. 

I know the distinguished majority leader has many demands on 

his mind, so do any Members have any questions of the majority 

leader? 

If not, the gentleman is excused with the thanks of the Subcommittee, even though he didn’t need the assistance of a counselor 

for those tough questions. 

Mr. HOYER. Mr. Chairman, those questions I can handle. Thank 

you very much. 

Mr. NADLER. I would now like to introduce our second panel. I 

would invite the second panel to come to the table and be seated. 

Mr. HOYER. Mr. Chairman? 

Mr. NADLER. Withdraw that again. 

Without objection, the distinguished majority leader is recognized 

again. 

Mr. HOYER. We have one of the most extraordinary representatives in our presence today. Her husband was a giant, in league 

with the Martin Luther Kings and John Lewises as it relates to 

those with disabilities. 

Justin Dart was my friend. Justin Dart was one of the great 

leaders of this country. And I did not note the presence of his wife, 

Yoko Dart, who is just an extraordinary human being, and she has 

been faithful to Justin’s dream and a partner in his work, and I 

wanted to recognize her presence. 

20

We thank you for all you have done. 

Mr. NADLER. We are pleased to welcome her and—— [Applause.] 

Mr. HOYER. Mr. Chairman, this is Justin Dart’s hat, and I know 

that he is with us. 

Mr. NADLER. We are pleased to welcome her and we are pleased 

to welcome Mr. Dart’s hat. [Laughter.] 

And now would the second panel please assume seats at the 

table. 

While they are doing that, I will begin the introduction of our 

second panel. 

Cheryl Sensenbrenner appears today as chairwoman of the 

Board of the American Association of People with Disabilities, the 

largest national nonprofit trust disability member organization in 

the United States. AAPD is dedicated to ensuring economic selfsufficiency and political empowerment for the more than 56 million 

Americans with disabilities. 

Mrs. Sensenbrenner has been married to Congressman F. James 

Sensenbrenner, our former Chairman, for more than 30 years. 

They have two sons, Frank and Bob. 

Her younger sister, Tara, has an intellectual disability. In 1972, 

as a passenger in a car accident, Mrs. Sensenbrenner sustained a 

spinal cord injury at the T12 level. Mrs. Sensenbrenner has worked 

in a number of Republican Party positions, both before and after 

her injury. 

Stephen Orr is a licensed pharmacist from Rapid City, South Dakota. Mr. Orr experienced discrimination based upon his diabetes 

and was found not to be disabled under the Americans with Disabilities Act. He is here today to share his story with the Subcommittee. 

Mr. Orr has two sons and a daughter and serves as a volunteer 

for the American Diabetes Association. 

Michael Collins is the executive director of the National Council 

on Disability, the NCD. The NCD is an independent Federal agency charged with advising the President and Congress about the 

broad spectrum of issues of importance to people with disabilities. 

NCD activities are governed by a 15-member council that is appointed by the President and confirmed by the Senate. 

Prior to joining NCD, Mr. Collins was the executive director of 

the California State Independent Living Center, a State agency 

working to maximize opportunities for persons with disability. 

Lawrence Lorber is a partner in the Washington, D.C. office of 

Proskauer Rose LLC. Mr. Lorber is an employment law practitioner who counsels and represents employers in connection with 

all aspects of labor and employment law. Mr. Lorber testifies today 

on behalf of the Chamber of Commerce, the world’s largest business federation, representing more than 3 million businesses. 

Chai Feldblum is a professor of law at Georgetown University 

Law Center in Washington and Director of Georgetown’s Federal 

Legislation Clinic. On behalf of various organizational clients at 

the Federal Legislation Clinic, Professor Feldblum has been involved in a range of Federal legislative and administrative issues 

dealing with disability over the past 15 years, including civil rights, 

health, benefits and immigration. 

I am pleased to welcome all of you. 

21

As a reminder, each of your written statements will be made part 

of the record in its entirety. 

I would ask that you now summarize your testimony in 5 minutes or less. To help you stay within that time, there is a timing 

light on your table. When 1 minute remains, the light will switch 

from green to yellow, and then red when the 5 minutes are up. 

It is customary in this Committee on swearing the witnesses, so 

would you please—would the witnesses please stand, those who 

can. 

Will you please hold up your right hand. Do you all swear or affirm that the testimony you are about to give is the complete truth 

as far as you know? 

Thank you. 

Let the record reflect that all of the witnesses responded in the 

affirmative. 

We will first hear from Mrs. Sensenbrenner. Mrs. Sensenbrenner 

is recognized for 5 minutes. 

TESTIMONY OF CHERYL SENSENBRENNER, CHAIR,

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES 

Ms. SENSENBRENNER. Thank you, Mr. Chairman. 

Good morning. 

Chairman Nadler, Ranking Member Franks and Members of the 

House Judiciary Subcommittee, thank you for the invitation today 

to discuss the topic of ADA Restoration, an issue that affects the 

ability of literally millions of people with disabilities, our ability to 

enter and maintain our participation in the American workforce. 

My name is Cheryl Sensenbrenner, and I am pleased to offer my 

testimony today as the board chair of the American Association of 

People with Disabilities, AAPD. 

AAPD is the largest national cross-disability membership organization in the United States. 

But I must start out my testimony by saying I am so proud of 

my husband, Congressman Jim Sensenbrenner, as well as Majority 

Leader Hoyer, for their hard work and leadership in introducing 

this legislation. 

But I will assure you, like them, I will be around, I will continue 

to work relentlessly and keep on working on this bill until it is 

passed. 

But in addition to my affiliation with AAPD, I offer my testimony 

today based on my own experiences as a disabled woman and as 

a family member of people with disabilities. 

I acquired my disability at age 22 when I was in a car accident. 

I remember the doctors telling me, because my back was in pieces 

and crushed, that I would spend the rest of my life in bed, operating from bed. I knew I was hurt, but I also knew I wanted to 

be a full member of society. I wanted to do the best I could. So I 

continued to try hard and do the best I could with everything I 

could toward the goal that I had always dreamed of. 

Since that time, I have lived my life using a wheelchair, Canadian crutches or walking with a cane and a leg brace. And I am 

proud of my full life as a disabled woman, as a wife, as a mom and 

as a citizen. 

22

When I acquired my spinal cord injury, my sister, Tara, was born 

with Downs Syndrome about the same time. But because of her 

hard work and the support of our family, Tara graduated from high 

school, she has taken some college courses. She has supported herself through various jobs and she has bought and insured her own 

car. 

But I am here today to tell you that if and when Tara or I experience employment discrimination because of our disability, we will 

not be protected by the ADA. As Majority Leader Hoyer said better 

than I could, the Supreme Court has substituted its own judgment 

for the judgment of Congress and that is what has created the need 

for the restoration of the ADA that we are discussing today. 

As a consequence of court-made law, we have an absurd Catch22. If you manage your disability well, you do the best you can in 

spite of your disability, well then, your civil rights protections are 

taken away. The courts have taken them away. But if you don’t 

manage your disability well, you have civil rights protections, but 

you probably won’t be able to get a job. That is absurd. 

That means because I worked hard in physical therapy and in 

many other medical things, because I wear a leg brace and walk 

with a cane, the courts would find me not disabled enough to have 

civil rights. But if I had given up after my spinal cord injury, or 

if Tara, my sister with Downs Syndrome, had bought into the low 

expectations that society had so often given her, if neither of us 

had tried to live up to what each of our full potential was, we 

would have been protected if we hadn’t tried, if we hadn’t done our 

best. 

Now, there are lawyers and policy experts here with me today 

and they will go into greater detail, but I am here because I think 

the last message we would want to send to Americans with disabilities, in particular youth with disabilities and returning soldiers, is 

that the less you do to deal with your condition, the less you do 

to manage your disabilities, the less you try, the more likely you 

are to be protected under the civil rights laws. That is horrible policy, and it doesn’t make sense. 

We shouldn’t be punishing people for successfully managing their 

disabilities, trying to work and trying to pay taxes. ADA Restoration is really about being fair, about fairness. 

As a country, we should be focusing on disabled people’s abilities, 

and encouraging people to exceed their full potential. But instead, 

the courts have been punishing people for trying too hard, for trying to be productive, for wanting to pay taxes. This, again, doesn’t 

make sense. 

Please, please help us clear up the mess the courts have made. 

Help us restore congressional intent. Help us pass the ADA Restoration Act so that the ADA can open wide the doors of opportunity to all of us in America. 

Thank you. 

[The prepared statement of Ms. Sensenbrenner follows:]

PREPARED STATEMENT OF CHERYL SENSENBRENNER

Chairman Nadler, Ranking Member Franks, and Members of the House Judiciary 

Subcommittee: 

Thank you for the invitation to discuss the topic of ADA Restoration. I am honored to have this opportunity to testify on an issue that affects the ability of literally 

23

1 Americans with Disabilities Act, 42 U.S.C.A. § 12101 (1990). 

2See Remarks of President George Bush at the Signing of the Americans with Disabilities Act, 

available at http://www.eeoc.gov/ada/bushspeech.html; See also Remarks from Senators Orrin G. 

Hatch and Edward M. Kennedy, at National Council on Disability, The Americans with Disabilities Act Policy Brief Series: Righting the ADA, No. 1: Introductory Paper (October 16, 2002), 

available at http://www.ncd.gov/newsroom/publications/2002/rightingtheada.htm. 

millions of people with disabilities to enter and maintain their participation in the 

American workforce. My name is Cheryl Sensenbrenner, and I am pleased to offer 

my testimony today as the Board Chair of the American Association of People with 

Disabilities (AAPD), a national non-profit, non-partisan membership organization 

promoting the political and economic power of the more than 50 million children 

and adults with disabilities throughout the U.S. With more than 100,000 members, 

AAPD is the largest national cross-disability membership organization in the country. In addition to my affiliation with AAPD, I offer my testimony today as a granddaughter, a sister, and a mother of people with disabilities as well as my experience 

of being a woman with a disability myself. 

I offer my testimony today at a most crucial moment for people with disabilities—

a time at which U.S. Courts are at complete odds with clear Congressional intent 

regarding civil rights protections of people with disabilities, and at a time during 

which you, Congressmen and Congresswomen, can set a landmark civil rights law 

back on its intended course toward equality for all people. 

In 1990, with tremendous bipartisan support, Congress passed the ADA, and 

President George H.W. Bush signed it into law. During its passage, Congress acknowledged that people with disabilities were extremely disadvantaged socially, economically, vocationally, and educationally—this ‘‘political powerlessness’’ on account 

of pervasive discrimination, segregation, and exclusion ‘‘resulting from stereotypic 

assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society . . .’’ 1

Congress’s intention was clear. This great law, the ADA, was meant to stand as 

the ‘‘emancipation proclamation for people with disabilities’’ 2 against the unfair discrimination that had permeated all aspects of life for people with disabilities for far 

too long. The law’s broad directive to employers, public transportation systems, public accommodations, as well as other program and service providers (including the 

private sector) was to stop the unfair treatment of people on the basis of their current, past, or perceived disabilities. Once implemented, the ADA was intended to 

give all people with disabilities the opportunity for independence and full participation and inclusion in society. 

And to be sure, in the last 17 years since its passage, we have witnessed an undeniable transformation in our society. Access to public transportation has improved 

considerably on account of the ADA requirement that all new buses, trains, and accompanying stations be accessible for people with mobility, sensory and other disabilities—there is no question we live in a more accessible society than in 1990 on 

account of the ADA. Closed-captioning, curb-cuts, power-assisted doors, large print 

signage—all of these are hallmarks of society post-ADA—of a society more welcoming of and accessible to people with disabilities than in a time past. 

I remember that time past. I can remember cold, snide remarks, and demeaning 

looks and stares that my sister, Tara, who has Down’s syndrome, endured nearly 

every day growing up. And for myself, I vividly recall numerous occasions in which 

I was subjected to the ignorant comments and low expectations of others after acquiring my spinal cord injury at age 22. I remember once waiting for my father, 

then Attorney General of Wisconsin, in the lobby of a bank while he conducted some 

business, and I remember a bank executive staring at me and stating coldly, ‘‘People 

like that belong on park benches out front and not in our lobby.’’

I remember it so clearly—‘‘People like that,’’ he said. ‘‘People like that’’ are me, 

my sister, my son, many of my dearest friends, and countless Americans. ‘‘People 

like that’’ are your loved ones, your friends, or even you—now, or in the future. 

You see, the ADA starts with the recognition that disability is a natural part of 

the human experience. Any person at any time can encounter or acquire a disability. 

Some people are born with their disabilities, like Tara. Some acquire their disabilities through accident or injury, like I did. Others encounter invisible disabilities 

through a bout with an illness. Some manifest their disabilities during their school 

years. Others acquire a disability as they age. And still others acquire disability 

while putting their lives on the line for our country, as we are reminded daily with 

each wave of returning soldiers from Iraq and Afghanistan. 

Given that all kinds of disability can enter any person’s life at any time, often 

without warning, the more accessible the society we create, and the more intact our 

system of legal protections, the greater benefit we all reap as a result. The ADA, 

24

3Laura L. Rovner, Disability, Equality, and Identity, 55 Ala. L. Rev. 1043 (2004). 4Despite many factors contributing to a positive outlook for employment of people with disabilities, including the passage of civil rights laws like the ADA, the employment rate of people 

with disabilities has not improved significantly, as EEOC Chair Naomi C. Earp pointed out in 

her testimony during the September 13, 2006 ADA Oversight Hearing held by the House Judiciary Committee, Subcommittee on the Constitution. See also Harris, L. & Associates (1998) 

N.O.D./Harris Survey Program on Participation and Attitudes: Survey of Americans with Disabilities. New York. See also L. Harris & Associates, N.O.D./Harris Survey Program on Participation and Attitudes: Survey of Americans with Disabilities (2004). 5 Career World, Nov/Dec 2000. 6See Amy L. Allbright, 2004 Employment Decisions Under the ADA Title I—Survey Update,

29 Mental & Physical Disability L. Rep. 513, 513 (July/August 2005) (stating that in 2004, ‘‘[o]f 

the 200 [employment discrimination] decisions that resolved the claim (and have not yet been 

changed on appeal), 97 percent resulted in employer wins and 3 percent in employee wins’’). 

then, is a law for all people. It was meant to ensure that whatever the circumstances may be that surround a person’s encounter with disability, Americans 

are never to be treated unfairly, excluded unnecessarily, or relegated to second-class 

citizenship on the basis of disability without recourse. 

Despite all the progress since the passage of the ADA, sadly, we still have a long 

way to go before the ADA’s inclusive vision becomes a reality in America. For instance, I am amazed at how routinely kind and well-educated individuals with 

whom I interact assume that I acquired my disability after marrying my husband, 

Congressman F. James Sensenbrenner, by remarking how good it was of him to 

‘‘stick by me’’ through that. The fact of the matter is Jim and I fell in love and got 

married during a time in which I was already disabled. You see, he ‘‘got me’’ in a 

wheelchair, or at best on Canadian crutches. As for my sister, Tara, through the 

support of family, she graduated from high school, pursued college coursework, and 

has gone on to support herself through various jobs, which she has used to finance 

and insure her car and participate in numerous hobbies. Just this week, she gave 

me lots of helpful tips about my testimony. And yet despite all her immediately apparent independence, Tara too still routinely runs up against paternalistic words 

and actions. 

Although there are many obstacles yet to be removed for people with disabilities, 

I believe the largest and most pervasive one to remain is that of attitude. The fears, 

myths, and stereotypes about people with disabilities from my youth are the same 

fears, myths, and stereotypes that I still hear of and encounter today, and they are 

the same fears, myths, and stereotypes that all too routinely result in people being 

shut out of employment opportunities. 

While it is obvious that the ADA has acted as a great equalizer in a variety of 

contexts, its full potential has yet to be realized. The ADA, as Congress intended 

in its passage, creates an incentive, arising from a legal obligation, for all citizens 

to forge a better understanding and more proper perspective for accepting and integrating people with disabilities into all aspects of society, including the workforce.3

In order for that to occur and for the greatest barrier to all people with disabilities—

fears, myths, and stereotypes—to be removed, the law must be applied and enforced 

as it was intended. 

However, this is not happening. Several of my esteemed colleagues on the panel 

today will discuss the numerous damaging court decisions that have significantly 

narrowed the intended protections of this law. As a result of these court rulings, 

the ADA has lost some of its potency as a teacher, and the devastating effects are 

clear. 

The employment rate of people with disabilities has not improved with the passage of the ADA.4 Two-thirds of individuals with disabilities who do not have a job 

say they want to have one but cannot find employment.5 Many of those who do find 

employment often experience discrimination along the way—in hiring, requesting 

accommodations, or in unlawful terminations—on account of the same pervasive 

fears, myths, and stereotypes which characterized the past. What’s worse, when 

these individuals seek their day in court, more than 90% of the time, the courts will 

side with the employers rather than the individuals who faced discrimination.6 By 

undercutting civil rights protections for people with disabilities, the Courts have imposed a dangerous and unacceptable U-turn in the progress people with disabilities 

have made to date. They have made it legal for employers to say ‘‘You are not welcome here’’ to disabled individuals who want to work, and who want to pay taxes—

some of whom have a history of dependency on entitlement programs but are attempting to leave them to become financially independent; some of whom have recently completed higher education following 13 years of inclusive education, only to 

25

7See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (holding that ‘‘mitigating measures’’—medication, prosthetics, hearing aids, other auxiliary devices, diet and exercise or any 

other treatment—must be considered in determining whether an individual has a disability and 

is protected by the ADA); see also Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); 

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999)). In reaching this conclusion, the Court disregarded explicit statements from Congress that it did not intend mitigating measures to be considered in determining whether a person has a disability: ‘‘whether a person has a disability 

should be assessed without regard to the availability of mitigating measures, such as reasonable 

accommodations or auxiliary aids.’’ S. Rep. No. 116, 101st Cong., 2d Sess. at 22 (1989); see also,

Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91, 106 (2000). 

find that now, after all their hard work, the inclusivity and legal protections are 

gone. 

The ADA was meant to be just like other civil rights laws that address employment discrimination—the sole focus of a legal case was to be on the alleged discrimination of the employer—whether the worker was treated fairly or treated unfairly 

because of unlawful discrimination. However, as I have come to understand it, unlike other civil rights laws, the Courts have created what I like to call a ‘‘double 

whammy’’ for people with disabilities who seek to bring a case under the ADA. First 

they must prove their disabilities through a series of invasive and often highly irrelevant inquiries into the most intimate aspects of their lives. Once they have satisfied this increasingly difficult standard, only then are they given the opportunity to 

present the facts of discrimination. While a requirement of ‘‘proving’’ one’s disability 

may be reasonable in the context of an entitlement program, it is an unnecessary 

and harmful step in an employment discrimination context because it is preventing 

people from ever reaching the issue of whether they were treated unfairly because 

of their real or perceived disability. 

As things currently stand, the effects of the court cases are as absurd as they are 

devastating. Every day, people with conditions like epilepsy, diabetes, HIV, cancer, 

hearing loss, depression, and most recently, even people with intellectual disabilities 

(the new term for what we used to call ‘‘mental retardation’’), are getting caught 

in the first ‘‘hoop’’ of the court’s inquiry. A multitude of people who manage their 

disabilities effectively through medication, prosthetics, hearing aids, or other ‘‘mitigating measures’’ are viewed as ‘‘too functional’’—or not ‘‘disabled enough’’—to be 

protected under the ADA.7 Once stuck in the first hoop, these individuals never 

have an opportunity to present the facts of blatant employment discrimination that 

led them to pursue a legal remedy. This means that employers are allowed to make 

employment decisions on the basis of disability—fire or not hire someone because 

of their misperceptions or prejudices about disability—and yet the courts find those 

same individuals ‘‘not disabled enough’’ to be protected under the law! What an absurdity! 

As Chairperson of the Board of Directors of AAPD, I often think of our organization’s summer Congressional and Information Technology interns with disabilities. 

I think of how gifted, capable, and sometimes eccentric they are—all so unique and 

all with such varied disabilities—and I wonder if any of them will be shut out of 

the law with which Congress intended to protect their civil rights should any of 

them ever need it. 

Even closer to home, I have to wonder what would happen if the many disabled 

people in my family were ever to encounter and try to challenge employment discrimination under the judge-invented standard that is now the law of the land. Let 

us assume each of my family members with a disability applied for and was denied 

a job because of his or her condition. It is often not that blatant, but for purposes 

of this exercise, let us assume each family member was told the reason they were 

not considered for the position was because of his or her disability. 

My grandmother, Clara Warren, who had type 1 diabetes, would not likely fare 

well. If voluminous court decisions are any indication, more than likely, she’d get 

stuck in the first hoop of the ‘‘double whammy.’’ Because she responsibly managed 

her diabetes with medication and diet, the court would tell her that she was not 

disabled for purposes of the ADA and toss her case out of court. My son, Frank, 

who, like me, has ADHD, would also likely be told that he was too high-functioning 

to be protected under the law—never mind that in this hypothetical scenario, they 

expressly told him that they were not hiring him because of his ADHD. The same 

would likely be true of such a case pertaining to my spinal cord injury—I would be 

viewed as getting by ‘‘too well’’ to be considered disabled for purposes of the ADA’s 

protection. After hearing from the Littleton’s today, I have less confidence that the 

outcome would be any different for my sister, Tara, with her intellectual disabilities, 

who would also likely be viewed as too ‘‘high-functioning’’ to be protected. In each 

26

of our instances, the facts of the employer’s conduct would never even be heard in 

court. 

As if that was not preposterous enough, if we revisit each of my family members 

in turn and alter only one fact, all of our cases would likely be taken up in court 

and the facts of discrimination would be heard. If my grandmother had not taken 

her insulin; if Frank and I had not found ways to manage our ADHD; if I had not 

committed to physical therapy and rehabilitation following my accident; if Tara had 

not pursued and relied upon family supports and training. Basically, if all of us 

played into the historically low expectations for people with disabilities—not done 

all that we could do to recover from or manage our conditions—we would all stand 

a much better chance of having our day in court. 

I hope this family hypothetical scenario helps illuminate what the lawyers and 

policy experts can explain in greater depth. It seems to me that the last message 

we would want to send to Americans with disabilities—particularly youth with disabilities and returning war veterans—is the less you manage your disability, the 

less you try, the more likely you are to be protected under civil rights laws. 

Were the ADA to be applied as are other civil rights laws are, without the first 

hoop of proving one’s disability, the remedial goals of the ADA could be fulfilled. 

There would still be cases tossed out on the merits, just like lawsuits brought under 

other civil rights laws, but those cases deserving of judicial consideration would see 

their day in court, and the ADA would again be allowed to function as it was intended. 

My passion in seeing this legislation passed into law is very personal. While I 

may not be able to speak to all the fine nuances of court decisions, I do know that 

there is something seriously wrong with the scenario I described. And I know that 

we have deviated far, far away from what was intended when Senator Bob Dole, 

who helped to found AAPD and Congressman Tony Coelho, AAPD’s current Vice 

Chair, both key leaders in the passage of the original ADA, have been written out 

of the very law they helped author. 

Please support and help pass the ADA Restoration Act so that the ADA can open 

wide the doors of opportunity to all Americans. 

Thank you for giving me the opportunity to provide my testimony this morning.

Mr. NADLER. Thank you. 

Our next witness, Mr. Orr, is recognized for 5 minutes. 

TESTIMONY OF STEPHEN C. ORR 

Mr. ORR. Good morning. My name is Stephen Orr. I am a licensed pharmacist from Rapid City South Dakota. 

Thank you for the opportunity to speak. I would like to provide 

the highlights of my written testimony. 

I have lived with type 1 diabetes since 1986 and take excellent 

care of my health. Today I use an insulin pump. I treat my condition as recommended by my doctor and I maintain tight blood glucose control. This is incredibly important. It prevents the serious 

short- and long-term consequences of diabetes, including heart disease, amputation, blindness and death. 

In 1997, I was invited to apply for a pharmacy position as manager of Wal-Mart’s pharmacy in Chadron, Nebraska. It was a great 

opportunity. I had lived in there previously and my children and 

other family members lived there. 

I never imagined my diabetes would lead to my being fired from 

a job. However, that is exactly what happened. 

When I was hired by Wal-Mart, my diabetes management regimen included three insulin injections daily and lunch breaks to 

prevent me from suffering from dangerous low blood glucose levels 

or hypoglycemia. Prior to being hired, I disclosed to my district 

manager that I had diabetes and that it would be necessary for 

regularly scheduled, uninterrupted, half an hour lunch breaks to 

check my blood glucose and eat. Because I was going to be the only 

27

pharmacist, we agreed to close the pharmacy while I took my lunch 

break 

The pharmacy opened in January 1998. The first 6 weeks went 

very well. Then the regular management, original management, 

changed, and I was told that I could no longer close the pharmacy 

for lunch. 

I tried very hard to comply with their request, but was unable 

to do so and still manage my diabetes. My blood glucose readings 

plummeted. For example, one day I had a blood glucose reading of 

41. The normal reading for a healthy individual is 80 and 120. I 

was unable to eat until after 2 p.m. As soon as I went to the snack 

bar, I would be called back to the pharmacy. 

This was not a one-time occurrence, and for the next 3 months 

I experienced repeated dangerously lows on the job, including a 

blood glucose level of 32. 

I told my supervisor how unhealthy it was be for me to continue 

skipping lunch, but he refused to allow me a routine daily halfhour lunch break. Finally, to protect my safety, I returned to taking lunch breaks. On May 12 I was fired. Let me be clear: when 

I was fired, I was told flat out that it was because I had diabetes. 

After this discrimination I sued Wal-Mart for violating my rights 

under the ADA. However, the U.S. District Court ruled against me 

and the U.S. Court of Appeals rejected my appeal. Because of Supreme Court decisions narrowing the Federal law, I was not considered disabled under the Act for the sole reason that my diabetes 

was under such good control. 

Amazingly, the court ignored the fact that when I was working 

at Wal-Mart, was prevented from properly managing my condition 

by taking a lunch break. 

My case was dismissed, and I never had a chance to try to prove 

that with a small, reasonable accommodation, I could both perform 

my job and protect my health. Ironically, Wal-Mart is now allowing 

the pharmacy to close for lunch. 

It is not right that the same employer that fired me because of 

my diabetes could then claim that I do not meet the definition of 

disability under the ADA. 

I am before you today to say that even with proper diabetes management, the disease affects me every day, every hour of the day. 

I must constantly try my hardest to maintain a balance between 

dangerous highs and dangerous low blood glucose levels. The good 

news is that I have largely been successful in keeping my health 

safe. Yet, it was because I work so hard to manage my diabetes to 

make myself a productive employee and citizen that the court 

found that I didn’t merit protection from discrimination. 

My case is not unique. Mr. Charles Littleton and his mother, 

Darbara Littleton, wanted to speak to you today about their experience with the ADA, but unfortunately, they were not unable to 

meet with you. 

The Littleton’s have asked if I would submit their written testimony for the record. 

Mr. ORR. Again, thank you for the opportunity to speak. 

[The prepared statement of Mr. Orr follows:]

28

PREPARED STATEMENT OF STEPHEN C. ORR

Mr. Chairman and members of the Committee: 

Good morning. My name is Stephen Orr and I am a licensed pharmacist from 

Rapid City South Dakota. Thank you for the opportunity to testify before the Committee today. It is a pleasure to be here speaking to you, Chairman Nadler, Ranking 

Member Franks and the other distinguished members of this Committee. I appreciate you holding this hearing on restoring the Americans with Disabilities Act 

(ADA) and for providing me with the opportunity to tell my story of discrimination. 

I have lived with type 1 diabetes since 1986 and take excellent care of my health. 

Having type 1 diabetes means that I must administer insulin multiple times each 

day in order to survive. As a pharmacist, I provide others with information about 

how to manage their diabetes throughout the day—and I take that advice very seriously: treating my condition as recommended by my doctors and maintaining tight 

blood glucose control. 

I’d like to explain a little about diabetes so that you know what I mean by ‘‘tight 

blood glucose control.’’ Diabetes is a condition in which the pancreas either does not 

create any insulin, which is type 1 diabetes, or the body doesn’t create enough insulin and/or cells are resistant to insulin, which is type 2 diabetes. Insulin is a hormone that allows glucose or sugar to move from the blood stream into the cells 

where it is used for energy. Thus, untreated diabetes results in too much glucose 

in the blood stream. High blood glucose levels, known as hyperglycemia, can be very 

dangerous in the short term and, in the long-term, it is high blood glucose levels 

that lead to the many long-term complications of diabetes including blindness, heart 

disease, kidney disease, and amputation. Thus, I administer insulin to myself in 

order to lower my blood glucose level. However, while a normal pancreas is able to 

secrete just the right amount of insulin, it is much harder for a person with diabetes 

to maintain blood glucose level in a safe range. If I end up with too little insulin 

in my system I will have hyperglycemia. But, if I end up with too much insulin in 

my system I will experience a condition call hypoglycemia. Hypoglycemia occurs 

when blood glucose falls below 70 mg/dL. Low blood glucose levels can be caused 

by skipping or delaying a meal, more exercise or physical activity than usual, too 

much insulin, or not following your schedule for taking your insulin or diabetes 

pills. Mild or moderate hypoglycemia is pretty common for children and adults who 

take insulin but hypoglycemia can turn severe—leading to seizure or unconsciousness—in very little time. Severe hypoglycemia is a life-threatening condition. 

In short, hypoglycemia and hyperglycemia are conditions that happen when insulin and blood glucose are out of balance. In order to manage my diabetes I need to 

carefully monitor my blood glucose level by self-administering a blood test numerous 

times a day and adjusting the amount of insulin I administer to take into account 

the food I eat, the exercise I get, and other factors such as illness. The reason I 

strive for tight blood glucose control is that research has established that is the way 

to avoid the devastating long-term complications of diabetes. 

In 1997, a Wal-Mart district manager invited me to apply for a position as manager of the company’s pharmacy in Chadron, Nebraska. It sounded like a great opportunity. At the time, I was working as a pharmacist in Rapid City, S.D., but had 

lived in Chadron previously and looked forward to moving the 110 miles back to the 

town where my grown children resided and countless other family and friends still 

lived. The job had a great salary and, as I was 47 years old, I expected to retire 

from there. 

Having lived with diabetes for so long, I never imagined that my diabetes could 

lead to my getting fired. However, that is exactly what happened. In essence I lost 

my job as a result of trying to protect my health and safety even though none of 

that interfered with me being a good pharmacist. 

At the time that I was hired by Wal-Mart, my diabetes management regimen included, among other things, three insulin injections daily, as well as half-hour lunch 

breaks to prevent me from suffering from hypoglycemia. Prior to being hired, I disclosed to my district manager that I had diabetes and that I would need to have 

a regularly scheduled, uninterrupted, lunch break to check my blood glucose level 

and eat. I only accepted the position after my new employer agreed to the terms 

by which I could take the care necessary to manage my condition. Based upon this 

agreement, I accepted the position and moved to Chadron. 

On January 3, 1998, I began training in the Rapid City Wal-Mart Pharmacy. By 

the end of the month, we held the Grand Opening of the Chadron Wal-Mart Supercenter, and the in-store pharmacy formally opened. As the only pharmacist at this 

location, taking a lunch meant closing the pharmacy during that time period—one 

of the initially agreed upon terms for my employment. However, a mere six weeks 

after I started work, the regional management changed. I was told by a new district 

29

1Orr v. Wal-Mart Stores, 297 F.3d 720, 724 (8th Cir. 2002)

manager that I could not close for lunch breaks. I was instructed that I should eat 

behind the pharmacy if and when things slowed down. I tried to comply with the 

request, but was unable to do so and safely manage my diabetes. My blood glucose 

readings plummeted. For example, on March 12, 1998, I had a blood glucose reading 

of 41 mg/dL. On this particular day, I was unable to eat until after 2pm. When I 

walked over to the snack bar to pick up lunch I was paged back to the pharmacy. 

Unfortunately, this was not a one time occurrence and for the next three months 

I experienced repeated dangerously low hypoglycemia on the job, including a blood 

glucose level of 32 mg/dL on May 6, 1998. 

I spoke to my supervisor in order to explain how unhealthy it would be for me 

to continue the practice of skipping lunch, but he refused to consider accommodating 

my medical condition. In order to protect my safety, I was forced to return to my 

practice of taking half-hour lunches and on May 12, 1998, I was discharged. Let me 

be clear: when I was fired, I was told flat out that it was because I had diabetes. 

After the discrimination I experienced, I brought a case against Wal-Mart Stores, 

Inc. for violating my rights under the Americans with Disabilities Act. However, the 

U.S. District Court granted summary judgment against me and the United States 

Court of Appeals rejected my appeal. The appeals court said that because of Supreme Court decisions narrowing the federal law, I was not considered ‘‘disabled’’ 

under the Act—for the sole reason that my diabetes is under such good control. The 

appeals court agreed with my testimony that when my blood glucose level is not 

within a safe range I suffer from a variety of immediate complications including vision impairment, low energy, lack of concentration and mental awareness, lack of 

physical strength and coordination, slurred speech, difficulties typing and reading, 

and slowed performance. Yet, the court said that I could not rely on evidence of how 

I was when my blood glucose level was not within a safe range. Rather, the court 

said:

[N]either the district court nor we can consider what would or could occur 

if Orr failed to treat his diabetes or how his diabetes might develop in the 

future. Rather, [the Supreme Court decision in] Sutton [v. United Airlines] 

requires that we examine Orr’s present condition with reference to the mitigating measure taken, i.e., insulin injections and diet, and the actual consequences which followed.1

Amazingly, the court ignored the fact that when I was working at Wal-Mart, I 

was prevented from properly managing my condition by my employer. That is, WalMart took away the means I had to manage my disease, I became ill, and then my 

case was thrown out of court because the judges insisted upon viewing me as I 

would be if I had been allowed to properly manage my disease. 

My case was dismissed and I never had a chance to try to prove that, with a very 

small reasonable accommodation, I would have been able to both fully perform my 

job and protect my health and safety. Ironically, as a corporate policy, Wal-Mart is 

now allowing the pharmacy in Chadron to be closed for a 30 minute period, although there is still only one pharmacist on duty. 

I find it tremendously unfair that the same employer that fired me because of my 

diabetes could then successfully claim that I did not meet the definition of disability 

under the ADA. I ask that you amend the law so that the focus of cases like mine 

is on whether the individual can do the job, rather than lawsuits about the private 

details of an individual’s medical condition. I stand before you to say that, even with 

proper diabetes management, this disease affects me every day, every hour of my 

life. I must constantly try my hardest to maintain a balance between dangerously 

high and dangerously low blood glucose levels. Diabetes affects everything I do from 

eating to physical activity. The good news is that I have largely been successful in 

keeping myself safe and healthy. Yet, it was because I work so hard to manage my 

diabetes to make myself a productive employee and citizen that the court found that 

I didn’t merit protection from discrimination. 

I wish my case was unique but it is not. Mr. Charles Littleton and his mother, 

Darbara Littleton, had hoped to speak to you today about their experience with the 

ADA, but unfortunately, they were not able to make it. Their story is yet another 

example of a person who wanted to do the job and who could do the job with a reasonable accommodation, but who was refused an accommodation and then was not 

protected by the ADA. Charles and Darbara have asked me if I would submit their 

written testimony on their behalf, and so I ask that their testimony be made part 

of the record of this hearing. 

30

Too many people have had their ADA claims dismissed because they were found 

by the courts not to be sufficiently disabled under the courts’ misguided interpretation of the definition of disability under the ADA. Congress must restore the ADA 

to what it was intended to be—a comprehensive mandate to protect all Americans 

from discrimination based on disability. 

Again, thank you for the opportunity to speak before you today.

Mr. NADLER. I thank the witness. Those statements will be accepted without objection. 

[The prepared statement of Charles and Darbara Littleton follows:]

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PREPARED STATEMENTS OF CHARLES AND DARBARA LITTLETON


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Mr. NADLER. Mr. Collins is recognized for 5 minutes. 

TESTIMONY OF MICHAEL C. COLLINS, EXECUTIVE DIRECTOR, 

NATIONAL COUNCIL ON DISABILITY 

Mr. COLLINS. Chairman Nadler, Ranking Member Franks and 

Members of the House Judiciary Subcommittee, the National Council on Disability would like to thank the Committee for this opportunity to provide testimony on the Americans with Disabilities Act 

and the ADA Restoration Act. 

I have been asked to share some information NCD has learned 

about the experiences of people with disabilities as a result of Supreme Court interpretations on the definition of disability under 

the ADA and to explain why it is the unanimous position of our 

15-member council, most who have disabilities, or whose lives are 

impacted by disability on a daily basis, that this Restoration Act 

is timely and necessary. 

NCD first proposed the concept of the ADA in 1986 and proposed 

language for the new law soon thereafter. NCD monitors the impact, implementation and effectiveness of the ADA and other disability-related laws and programs on an ongoing basis. One of 

NCD’s monitoring activities has been to analyze the Supreme 

Court cases interpreting the ADA. 

From 2002 to 2004, NCD produced a series of 19 policy briefs 

analyzing these Supreme Court decisions and their ramifications 

on subsequent Federal court cases. This work culminated in a comprehensive report called ‘‘Righting the ADA,’’ which I have with 

me, in which NCD proposed language for an ADA Restoration Act. 

Congress defined disability in the ADA to encompass both actual 

and perceived limitations and limitations imposed by society. It 

was intended to provide comprehensive protections for anyone who 

had been excluded or disadvantaged by a covered entity on the 

basis of a physical or mental impairment, whether real or perceived. 

The Supreme Court has issued several decisions relating to the 

definition of disability under the ADA, so altering it that the majority of people with disabilities would have no Federal legal recourse 

in the event of discrimination, particularly in instances of employment discrimination, as Mr. Orr has expressed. 

In June 1999, the Supreme Court decided Sutton v. United Airlines, a case involving pilots needing corrective lenses, and Murphy 

v. United Parcel Service, a case involving a man with high blood 

pressure. In both cases, the Court held that in determining whether an individual is substantially limited in a major life activity, 

courts may consider only the limitations of an individual that persists after taking into account mitigating measures. 

On the same day in 1999, the Court decided Albertson’s v. 

Kirkingburg, a case involving a man who was blind in one eye. The 

Court held in Krukenberg that a mere difference in how a person 

performs a major life activity does not make the limitation substantial. How an individual has learned to compensate for the impairment, including measures undertaken whether consciously or not 

with the body’s own systems also must be taken into account. 

The results of these decisions is that people who Congress clearly 

intended to be covered by the ADA, such as people with epilepsy, 

38

diabetes, depression and hearing loss, are now being denied employment and refused reasonable accommodations because of the 

disability and courts refuse to hear their cases, regardless of how 

egregious their employers actions. 

These decisions have also resulted in courts now making elaborate inquiries into all aspects of the personal lives of certain plaintiffs in order to determine whether and to what extent mitigating 

measures actually alleviate the effects of the disability. 

The Supreme Court has also changed the meaning of substantial 

limitation of a major life activity in ways that screen out even more 

people with disabilities. In Toyota v. Williams, the Court changed 

‘‘substantially limits’’ to mean ‘‘prevents or severely restricts’’ and 

decided that to be substantially limited in a major life activity a 

person must be substantially limited in an activity ‘‘of central importance to most people’s daily lives.’’

This has led to extensive questioning by courts about individual’s 

ability to brush his or her teeth, bathe, dress, stand, sit, lift, eat, 

sleep and interact with others. It has led to contradictory rulings 

by Federal courts about whether activities such as communicating, 

driving, gardening, crawling, jumping, learning, shopping in the 

mall, performing housework and even working and living are major 

life activities. 

In hundreds of cases of alleged disability-based discrimination, 

people with disabilities have had to spend their resources litigating 

such issues often with the question of whether disability discrimination has occurred going unaddressed. 

I receive several inquiries each month from highly qualified and 

highly motivated jobseekers with disabilities. In many cases, they 

express frustration about the doors to employment that are shut or 

slammed in their faces. An email I received just yesterday was fairly typical. A prospective employer had actually Googled the applicant and discovered an article profiling the candidate in a disability 

publication. The employer placed a call to advise that the office was 

on the second floor of a building with no elevator. They could not 

accommodate an employee in a wheelchair, so the applicants name 

was being removed from consideration for the job. 

This is extremely frustrating as the applicant did not use a scooter, a wheelchair or other mobility device, but a false perception by 

the employer that this person could not access the job site actually 

could not be challenged under the current court interpretations of 

the ADA. 

NCD is also concerned about the impact of the developments in 

the ADA case law on veterans with disabilities. Many of our veterans require the use of those mitigating measures the court 

speaks of, including medication, orthotics and assistive technology. 

The phenomenon is due in part to advances in assistive technology 

that make it possible for people with disabilities to perform a wide 

range of jobs and these members have decided to either reenter the 

military or enter the civilian workforce shortly after they return to 

the States. 

We must restore the ADA to ensure that our society welcomes 

home our veterans with disabilities and all Americans deserve that 

consideration. H.R. 3195 simply confirms the congressional intent 

in the ADA to provide that protection, whether real or perceived. 

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In conclusion, the ADA has been transformed into special protections for a select few. NCD urges Congress to act quickly to reinstate the scope of protection Congress initially provided in the 

ADA. 

Thank you. 

[The prepared statement of Mr. Collins follows:]

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PREPARED STATEMENT OF MICHAEL C. COLLINS


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Mr. NADLER. Thank you. 

Mr. Lorber is recognized is for 5 minutes. 

TESTIMONY OF LAWRENCE Z. LORBER,

U.S. CHAMBER OF COMMERCE 

Mr. LORBER. Thank you, Mr. Chairman, Ranking Member 

Franks. 

In addition to the introduction that the Chairman kindly gave 

about me, I do want to note that in 1975 I was privileged to be appointed and head the Office of Federal Contract Compliance Programs at a time when the 1974 amendments to the Rehabilitation 

Act were being considered. And we issued the first regulations 

under section 503 dealing with what was then called handicaps for 

employment. 

That was at a time when we did not have the benefit of the experience that the Congress had in 1989 and 1990, and we had to create, in many respects, concepts that were applicable then to employment and, I think as it turned out, with the subsequent 

issuance of the 504 regulations, applicable today. 

With all due respect, H.R. 3195 is not a Restoration Act. It is an 

attempt to pass, in 2007, a law that the Congress examined and 

rejected in 1988. Instead, the Congress in 1989 and 1990 addressed 

the issue of discrimination against handicapped individuals, disabled individuals, in many aspects looked to the experience under 

section 504, looked to the long experience under the other laws, 

State and Federal, affecting disabled, and opted to choose a statutory scheme which recognized that those who are disabled, truly 

disabled, whose disability affected a major life activity, would then 

go on to require employers for title 1, for the employment section, 

to work interactively with those individuals and hopefully come up 

with accommodations to enable those individuals to meet their full 

and undoubted capacities and contribute to society. 

The bill before you today does none of that. Rather, what it does 

is change in a wholesale method the definition of who would be 

covered under the law. It substitutes for disability the notion of impairment. It takes away the notion and the concept that there are 

indeed disabled Americans who are deserving of protections and 

should be able to work. And instead substitutes for that every 

American, every employee, every applicant for employment who 

might have a condition, be it permanent or transient, be it disabling or annoying, be it cured or subject to cure, and require employers to afford to every one of those individuals the specific types 

of relief and obligations unique to the ADA which they are now required to apply to those with disabilities. 

They would have to engage in an interactive process. They would 

have to determine what specific accommodations an individual 

such as that could need to perform the job. One could only imagine 

the type of accommodations which would be required to somebody 

who has a cold. One could imagine the type of accommodations to 

somebody who, for example, has lost their eyeglasses, misplaced 

them, and would come in 45 minutes late because they couldn’t 

find their eyeglasses. These are not hypothetical issues. These are 

real issues which would be caused by this act if it were passed. 

51

In addition, I would point out that the ADA is unique in many 

respects. It does require individualized assessments of the ability 

of an individual to do their job, unlike every other employment discrimination law, which takes the status of the individual and determines if that status led to, in the legal term causation, to deal with 

that individual in a way that was improper. Here, under the ADA, 

there are affirmative obligations for employers to engage in the 

process I described so that the employees or the applicants may be 

given a fair and appropriate opportunity to be considered for employment and to achieve employment. 

Instead, what we are talking about is turning this act, the Americans with Disabilities Act, into the Universal Employment Act of 

2007, affording every individual the opportunity to bring a lawsuit, 

to challenge an employment decision and simply connect it in some 

manner, whether direct or indirect, to their condition. 

I would like to briefly point out one other aspect of this proposed 

legislation which is indeed remarkable. In every employment discrimination law, an individual has to be qualified to be considered 

for the job. Under the ADA you are either qualified with or without 

an accomodation as appropriate under the statutory scheme. The 

legislation before you changes that. It takes away the need for the 

individual to show they are qualified and rather puts on the employer an affirmative defense after the litigation is commenced, 

after discovery is undertaken, to try to show that the individual is 

or is not qualified, approving the negative. In legal parlance, it 

would be an almost impossible burden. And what that would do is 

cause all of these cases, all of these issues, to go to litigation. 

I would like to briefly point out that we have been told that Sutton and its progeny have ended the rights of the disabled. Well, in 

1998 the EOC received some 17,088 claims. They found cause or 

determinations of 6.2 percent of those claims. In 2004, after Sutton, 

after Williams, they received approximately 15,500 claims and 

there were positive cause determinations of 5.5 percent of those. 

Hardly any indication that Sutton or other cases resulted in the 

diminution or the ending of the rights of the disabled. 

The Chamber of Commerce recognizes and suggests that there is 

no difference in the interest of the employment community and the 

disabled individuals that the ADA is meant to protect. The Chamber of Commerce also recognizes that any statutory scheme deserves reexamination after 17 years of experience. However, it rejects the notion that the long experience under the Rehabilitation 

Act of 1973 and the ADA be tossed aside and be replaced by a litigation regime not focused on the universally lauded goal of full inclusion of qualified individuals with disabilities into the mainstream of American life, but rather to place 15,000 or 17,000 more 

cases into the courts so that we can, the lawyers among us who 

perhaps do well under this act, but those who the act were meant 

to protect simply wait at the end of a very long line. 

Thank you very much. 

[The prepared statement of Mr. Lorber follows:]

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PREPARED STATEMENT OF LAWRENCE Z. LORBER


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Mr. NADLER. Thank you. 

And our final witness who will be recognized for 5 minutes is 

Professor Feldblum. 

TESTIMONY OF CHAI R. FELDBLUM, PROFESSOR,

GEORGETOWN UNIVERSITY LAW CENTER 

Ms. FELDBLUM. Thank you, Mr. Chairman. 

Mr. Lorber says here what he also says in his written testimony, 

that in 1989 Congress looked at a bill that would have language 

like the ADA Restoration Act and deliberately decided not to go 

that route and instead to go the route of the language in the bill 

of the ADA. And therefore, it would be impossible to say that if you 

went back to that language, that you would be restoring your intent. 

Sounds like a pretty strong argument. So I went to see what his 

citation was for that. His citation was my law review article that 

I wrote. So if you actually read the rest of the law review article, 

you see that in 1986, the National Council on Disability, as you 

have just heard from Mr. Collins, recommended that there be an 

Americans with Disabilities Act, and they recommended a set of 

language that said ‘‘physical or mental impairment,’’ and they had 

definitions of physical and mental impairment. 

And we all said why are you using different language? We totally 

get what you are trying to achieve, that anyone who has a physical 

or mental impairment, and was discriminated against on that 

basis, should, as you heard from Cheryl Sensenbrenner, be able to 

bring a claim. If that is what you are trying to achieve, we said, 

you don’t need to use those words. We have words that have been 

in place for 15 years. We have lots and lots of cases. And under 

those cases, everyone with a range of impairments has been covered either under the first prong of the definition, an impairment 

that substantially limits a major life activity, or they were covered 

under the third prong, they were regarded as, they were perceived. 

So what you are trying to achieve with this language, we can 

achieve with language that has been used for 15 years. That is why 

the language in the bill from 1988 was not accepted, and instead 

we went to the language of section 504. 

Well, guess what happened? As you heard, the Supreme Court 

took the new language and started reading in all types of limitations that had never been put in there by courts in section 504. So 

now in 2007, we are back here again with the recommendation 

from the National Council on Disability saying you know what, 

maybe our first suggestion was the better one. And that is what 

H.R. 3195 does. 

So really, Members of this Subcommittee, the question before you 

is a very simple one. As a matter of policy, is the ADA doing the 

job you wanted it to do? Is it covering the people from the types 

of discrimination you wanted to stop? It is a very simple question. 

And the answer is very simple as well. The answer is no. 

Let me tell you, I worked with Larry Lorber back then, and I 

have a lot of respect for him. But there was one sentence in his 

written testimony that really caught me. It was this: ‘‘For 17 years, 

the ADA has fulfilled its promise to the individuals it was meant 

to protect, a protected class of individuals with disabilities.’’

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With all due respect, this statement is not true. If it were true, 

we would not be sitting here today. If it were true, Mr. Orr would 

still have his job in the pharmacy with a regularly scheduled halfhour break to take his insulin. 

So how did the promise get so messed up? You have heard already and so I will only add two things in terms of the legal piece, 

and then I look forward to the questions. First, in the case of Sutton v. United Airlines, which you heard about, the Supreme Court 

had to decide whether the agency, the EEOC, was correct in saying 

that you don’t take into account mitigating measures when you decide if someone’s impairment ‘‘substantially’’ limits a major life ‘‘activity.’’ That language we gad decided to use. 

The agency was not going out on a limb when it said don’t take 

into account mitigating measures. As the Chairman noted, this 

Committee as well as three others said the same thing in its report—don’t take into account mitigating measures. 

What did the Supreme Court say? ‘‘We conclude that the approach adopted by the agency guidelines is an impermissible interpretation of the ADA.’’ Wow. An impermissible interpretation of the 

ADA. How do they deal with three Committee reports that say this 

is the interpretation we want? What the Court said was, ‘‘Because 

we decide that by its terms the ADA cannot be read in this manner, we have no reason to consider the ADA’s legislative history.’’ 

Because the words are so clear to us about what Congress intended, we don’t have to go to the legislative history. 

The Supreme Court read the words in a certain way. If you don’t 

agree, you need to change those words. And that is the same thing 

that they did in the Toyota case in terms of reading ‘‘substantially 

limited’’ to create the demanding standard. If you don’t think it 

should create the demanding standard, you have to change the 

words. 

That is all that the ADA Restoration Act is doing. It is time for 

Congress to write this law more clearly and more plainly so that 

the promise of the ADA can indeed finally be fulfilled. 

Thank you. 

[The prepared statement of Ms. Feldblum follows:]

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PREPARED STATEMENT OF CHAI R. FELDBLUM


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Mr. NADLER. Before recognizing myself for 5 minutes to begin the 

questioning, I will simply note the very welcome presence of Congressman Sensenbrenner, the former Chairman of this Committee, 

who is a Member of the Committee but not of the Subcommittee. 

And we welcome him to this hearing. 

Let me begin by recognizing myself for 5 minutes and ask Professor Feldblum first, Mr. Lorber expressed concern that the bill 

would mean that a plaintiff would no longer have to show that he 

or she is qualified for a job, that the burden would shift. Do you 

think this is a valid concern? Does the bill do that? 

Ms. FELDBLUM. I do not believe this is a valid concern at all. The 

bill does not change the fact that a person has to be a qualified person with a disability. It does not change the fact that a qualified 

person with a disability means someone who, with or without reasonable accommodations, can do the essential functions of the job. 

It does not change the provision in the act that says that an employer may offer as a valid qualification standard, as a defense, a 

valid qualification standard, that screens out or attempts to screen 

out a person with a disability. 

I think it is simply a misreading of the bill. 

Mr. NADLER. Thank you. 

Mr. Lorber, you heard Mr. Orr’s testimony and you know his situation. Do you think that the Court was correct in saying that in 

such a situation, because his diabetes is controllable, he does not 

deserve the protections of this act and therefore can be fired because he doesn’t get the protections of the act? And do you think 

that this bill, that we should correct that? And if not, why not? And 

if yes, why? 

Mr. LORBER. Thank you, Mr. Chairman. 

There are a lot of cases, people win cases and people lose cases. 

There is a case, Lawson v. CSX. 

Mr. NADLER. Wait a minute. Let’s stick to Mr. Orr——

Mr. LORBER. It will address——

Mr. NADLER [continuing]. Because I want to use that as a type 

case. 

Mr. LORBER. Well, Lawson was a diabetes case. It was in the 7th 

Circuit. The plaintiff won the case. And that is cited in my testimony, and indeed we did provide to counsel a list of cases where 

plaintiffs won. 

The point is that Mr. Orr, as any case, has facts that may or may 

not be unique to those cases. Whether or not diabetes should be 

deemed a disability, Sutton implies that it certainly can, the 

Lawson case said it should. So that I don’t know that it is very productive to look at cases won and cases lost. Rather, I think we can 

look to what the impact——

Mr. NADLER. Wait a minute. Let me interrupt you right there. 

In looking at the results of any law, you have to look at the cases 

won and the cases lost to figure out what the law is doing. And I 

am frankly at a loss to interpret that last statement——

Mr. NADLER [continuing]. What? 

Mr. LORBER. We can look at cases where——

Mr. NADLER. Yes, but I am told that in 97 percent of the cases 

under the Disability Act now the plaintiff loses. 

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Mr. LORBER. Well, that figure, by the way, is not that dissimilar 

from cases under any of the civil rights laws. 

The other point that we made in the testimony is that we have 

17 years experience under the ADA. The assumption that no employer understands its obligations and, therefore, undertakes the 

reasonable accomodation, undertakes their interactive process, so 

that the cases that go to court are often the difficult cases. The 

cases that go to court are, for whatever reason. And that, I think, 

is the fairer number and indeed the number I talked to you about 

insofar as——

Mr. NADLER. Okay. Thank you very much. 

Professor Feldblum, can you comment on the Orr and the Littleton cases as to, A, fundamental fairness and, B, the intent of the 

act? 

Ms. FELDBLUM. Yes. And I think picking up actually on the 7th 

Circuit case that Mr. Lorber wanted to talk about, about a person 

with diabetes that did win, is going to be very useful for the Committee. 

Mr. Orr manages, as you heard, his blood glucose levels very 

well. He has to take insulin several times a day, monitor his blood 

sugar. But if he does that, his blood glucose level is managed very 

well, so he remains well qualified. Okay? 

The ability—that management requires an accomodation of being 

able to have a regularly scheduled lunch hour. This was exactly the 

type of thing that Congress expected when it passed the ADA, that 

it would be ensuring. 

Take the person with diabetes who won in the 7th Circuit on the 

question of whether he had a disability. His blood glucose was not 

managed as well, okay? So even with taking insulin, he would have 

breakthrough moments of hypoglycemia, he would have times 

when, as the Court said, despite the most diligent care, there 

would be occasions when his ability to think coherently was significantly impaired, as well as his ability to function. 

He also was trying to get a reasonable accommodation. These 

cases show exactly what Cheryl Sensenbrenner was trying to show. 

The thousands of people with diabetes who manage it well will 

never get a chance to ask for a reasonable accomodation. The few 

who really with decent management are still having breakthrough 

problems will be covered, but this person will potentially end up 

losing because he wasn’t qualified. 

Mr. NADLER. My time is expired and I would like to recognize 

Mr. Davis for 5 minutes. 

We have six votes coming up, so I would like to try to conclude 

the hearing at that point. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Ms. Sensenbrenner, let me just begin by complimenting you. I 

have always thought that I would not relish being on the other side 

of an argument from this half of the Sensenbrenner family. I can 

see I wouldn’t relish being on the opposite side of you either. So 

I compliment you for the clarity of your testimony. 

Let me just try to make a couple of quick observations, and I will 

take my 5 minutes and just perhaps provide a quick response from 

one of the witnesses. 

84

This is a complicated statute, and the interplay is complex, and 

I am not going to profess that I understand it as well as I understand some of the other discrimination statutes, but this is what 

seems to be the case to me, that the Supreme Court has decided 

that the reach of this statute should essentially be the group of 

people least likely to recover under it. Okay, that is putting it in 

plain English as I can understand it. The group of people who are 

so severely restricted that they likely could never win a lawsuit 

anyway and probably couldn’t function in the workplace, it seems 

to me, is the group of litigants that the court would allow to go forward. That doesn’t make a lot of sense to me and I want to put 

that in some perspective. 

One of the problems that some of us have with the Roberts court 

and with the Rehnquist court that produced this trilogy of cases described today is a very straightforward one. Both those courts have 

and had activist tendencies. This is the activist tendency that I 

would note. A tendency to, number one, look at what Congress has 

done and to say we think that Congress got it wrong. We think 

that Congress was wrong in its political judgment, so therefore we 

are going to substitute our political world view for Congress’. 

There has been a second tendency to say, well, we think that employment discrimination statutes in general have yielded too many 

frivolous claims. That perhaps explains Ledbetter, Professor 

Feldblum. That explains some of the more restrictive interpretations of title 7 from the Rehnquist courts and the Roberts courts. 

And this is what is troubling about that. The world view that 

there are too many frivolous lawsuits, the world view that it is too 

easy for people to go into court, there may or may not, Mr. Chairman, be some validity to that, but I thought it was a political judgment. And because it is a political judgment, I think the 535 of us 

in the Congress should get to make it and the President should get 

to make it. I am not comfortable with a body that is supposed to 

be calling balls and strikes and interpreting the plain language of 

statutes and interpreting congressional intent when it is manifest. 

I am not comfortable with that body deciding, you know what, we 

have a view of how the world ought to operate. 

I think that that is judicial activism, and I am as troubled by it 

as some of my colleagues are with its practice on the left. 

And I will yield back. 

Mr. NADLER. Thank the gentleman. 

I thank the witnesses. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask the witnesses to respond as promptly as you can so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, and with the thanks of the Chair, this hearing is adjourned. 

[Whereupon, at 11:21 a.m., the Subcommittee was adjourned.] 

(85)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, MEMBER, SUBCOMMITTEE ON THE

CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, AND CHAIRMAN, COMMITTEE

ON THE JUDICIARY

More than seventeen years ago, Congress passed the Americans with Disabilities 

Act to ensure independence and equality for people with disabilities. Our hopes and 

declarations for this landmark civil rights law were not timid or hollow. Our mandate was purposefully ambitious. We sought—for once and for all—to prohibit unfair 

discrimination based on disability. 

Through this broad mandate, we intended to protect anyone who is treated less 

favorably because of current, past, or perceived disability. It was our hope that people with disabilities would be protected from discrimination in the same way as 

those who experienced discrimination on the basis of race, sex, national origin, religion, or age. 

Sadly, this has not happened because the Supreme Court has failed to interpret 

the definition of ‘‘disability’’ as we intended. The Court has deviated from our intent 

in two significant and critically important ways. 

First, the Court has construed the Act to allow it to consider the impact of ‘‘mitigating measures’’—things like medicine, hearing aids, or prosthetic devices—in determining whether an individual has a ‘‘disability’’ under the ADA. This means that 

individuals who are fortunate enough to find ways to help manage their condition—

and therefore are more capable and independent—may not be entitled to the Act’s 

protections against disability discrimination because they are not considered to be 

‘‘disabled enough’’ under the ADA. 

Second, the Supreme Court has interpreted the definition of ‘‘disability’’ too narrowly. As a result, the standard for qualifying as ‘‘disabled’’ is unnecessarily difficult 

to meet, thereby denying critical protection to many individuals with serious health 

conditions who have faced disability discrimination. 

We never intended—or expected—this to happen. As Mr. Orr, one of our witnesses 

today will explain, the ADA, as interpreted by the Court, provides little protection. 

Because Mr. Orr takes insulin and maintains a strict dietary regimen that help control his diabetes, the courts have held that Mr. Orr’s impairment was not disabling 

enough and, therefore, he is not entitled to the ADA’s protection from discrimination. 

There are thousands of men, women, and children who—like Mr. Orr—who are 

being denied the protections that Congress intended the ADA to provide. 

His testimony will undoubtedly underscore why H.R. 3195, the ‘‘ADA Restoration 

Act of 2007’’ is so critical. This bipartisan legislation, which I am proudly a cosponsor of, will restore our original intent and help fulfill the ADA’s promise of basic 

equality. 

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