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H.R. 3195, ADA

RESTORATION ACT OF 2007

HEARING

BEFORE THE

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, JANUARY 29, 2008

Serial No. 110–76

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

(III)

C O N T E N T S 

Page

Hearing held on January 29, 2008 ......................................................................... 1

Statement of Members: 

Andrews, Hon. Robert E., a Representative in Congress from the State 

of New Jersey ................................................................................................ 1

Submissions for the record: 

Statement of the American Civil Liberties Union ........................... 79

Statement of the Bazelon Center for Mental Health Law .............. 80

Statement of the United Jewish Communities ................................ 81

Statement of the Disability Policy Collaboration ............................ 83

Statement of the Epilepsy Foundation ............................................. 84

Statement of the National Council on Disability ............................ 86

Statement of the National Council on Independent Living ............ 95

Courtney, Hon. Joe, a Representative in Congress from the State of 

Connecticut: 

Prepared statement of ............................................................................... 74

Statement of Dr. Sally Shaywitz .............................................................. 75

Fortun ̃ o, Hon. Luis G., a Representative in Congress from the Territory 

of Puerto Rico, prepared statement of ......................................................... 78

Hoyer, Hon. Steny H., Majority Leader, U.S. House of Representatives .... 5

Prepared statement of ............................................................................... 8

McKeon, Hon. Howard P. ‘‘Buck,’’ Senior Republican Member, Committee 

on Education and Labor ............................................................................... 3

Prepared statement of ............................................................................... 4

Submissions for the record: 

Statement of organizatons in opposition to the bill ........................ 97

Statement of the U.S. Chamber of Commerce ................................. 99

Statement of the U.S. Department of Justice .................................. 112

Statement of the HR Policy Association ........................................... 118

Statement of the National Federation of Independent Business ... 140

Woolsey, Hon. Lynn C., a Representative in Congress from the State 

of California ................................................................................................... 79

Statement of Witnesses: 

Burgdorf, Robert L., Jr., professor of law, University of the District of 

Columbia ........................................................................................................ 28

Prepared statement of ............................................................................... 30

Fram, David K., Esq., director, ADA & EEO services, National Employment Law Institute ....................................................................................... 21

Prepared statement of ............................................................................... 23

Imparato, Andrew J., president and chief executive officer, American 

Association of People with Disabilities (AAPD) ......................................... 10

Prepared statement of ............................................................................... 12

McClure, Carey L., electrician ......................................................................... 17

Prepared statement of ............................................................................... 19

(1)

H.R. 3195, ADA RESTORATION ACT OF 2007

Tuesday, January 29, 2008

U.S. House of Representatives 

Committee on Education and Labor 

Washington, DC

The committee met, pursuant to call, at 10:01 a.m., in room 

2175, Rayburn House Office Building, Hon. George Miller [chairman of the committee] presiding. 

Present: Representatives Kildee, Payne, Andrews, Woolsey, 

Hinojosa, McCarthy, Kucinich, Holt, Bishop of New York, Sarbanes, Loebsack, Hirono, Yarmuth, Hare, Courtney, McKeon, Petri, 

Castle, Ehlers, Platts, Wilson, Kline, Kuhl, Davis of Tennessee, and 

Walberg. 

Staff present: Aaron Albright, Press Secretary; Tylease Alli, 

Hearing Clerk; Jordan Barab, Health/Safety Professional; Chris 

Brown, Labor Policy Advisor; Jody Calemine, Labor Policy Deputy 

Director; Carlos Fenwick, Policy Advisor for Subcommittee on 

Health, Employment, Labor and Pensions; Michael Gaffin, Staff 

Assistant, Labor; Brian Kennedy, General Counsel; Thomas Kiley, 

Communications Director; Sharon Lewis, Senior Disability Policy 

Advisor; Stephanie Moore, General Counsel; Alex Nock, Deputy 

Staff Director; Joe Novotny, Chief Clerk; Michele Varnhagen, 

Labor Policy Director; Mark Zuckerman, Staff Director; Robert Borden, General Counsel; Cameron Coursen, Assistant Communications Director; Ed Gilroy, Director of Workforce Policy; Rob Gregg, 

Legislative Assistant; Victor Klatt, Staff Director; Alexa Marrero, 

Communications Director; Jim Paretti, Workforce Policy Counsel; 

Molly McLaughlin Salmi, Deputy Director of Workforce Policy; Ken 

Serafin, Professional Staff Member; Linda Stevens, Chief Clerk/Assistant to the General Counsel. 

Mr. ANDREWS [presiding]. Good morning. The committee will 

come to order. We appreciate your attendance. 

This morning, the chairman of our full committee, Mr. Miller, is 

occupied in a markup in the Resources Committee. He has asked 

me to begin the hearing on his behalf, which I am privileged to do. 

Nearly two decades ago, President George Herbert Walker Bush, 

working with a Democratic majority in the Senate and a Democratic majority in the House, ably managed and led by the gentleman who is now our majority leader, who was then Congressman Hoyer, enacted a landmark piece of civil rights legislation 

called the Americans with Disabilities Act. 

2

The act has always had great promise. It came from a great consensus to do the right thing by Americans to help them achieve 

their highest potential, irrespective of their abilities or disabilities. 

It was a law that has enjoyed broad support and done much good. 

I would say that nearly 2 decades ago when President Bush signed 

that bill and leaders like Mr. Hoyer made possible, they certainly 

would not have thought that we would be sitting here in a situation where muscular dystrophy is not a disability, at least according to some of the federal courts of the land; a situation where carpal tunnel syndrome is not a disability according to the United 

States Supreme Court; where we would be in a situation where a 

severe vision impairment is not a disability according to the United 

States Supreme Court. 

Suffice it to say that what I believe are tortured judicial interpretations of the definition of a ‘‘disability’’ have put us in the position 

where the Americans whom we sought to protect under that law 

are not enjoying the full and robust protections of the law. The 

Americans with Disabilities Act essentially has three concepts. The 

first is that no American should be deprived of the right to pursue 

his or her best objectives and best aspirations because of any disability, and it defines ‘‘disability.’’

Second, it says that there cannot be discrimination or mistreatment based upon disability. And third, it sets up a process where, 

in the case of our jurisdiction, employers and employees can determine what reasonable accommodations can and should be made so 

that a person with a disability can reach his or her highest potential. It is my judgment, based upon history of the last nearly 20 

years, that the judicial interpretations of the meaning of ‘‘disability’’ has severely undercut the effectiveness of this act and severely excluded a lot of worthy Americans from the act’s protection. 

As he did nearly two decades ago, Mr. Hoyer has responded to 

this concern. He has introduced legislation which would correct 

these judicial misinterpretations and we are privileged that he is 

with us this morning to discuss his legislation, discuss the underlying problem, and for this committee to begin the process of debating, on a bipartisan basis, what the best solution to the problem 

is. 

The way we will proceed this morning is that my friend the ranking member of the full committee, Mr. McKeon, will have an opening statement. Other members are invited to submit opening statements for the record. We will then turn to Mr. Hoyer, who will give 

us his testimony. Members will have a chance to ask him questions, although I will suggest to members that it has been our practice in the committee to recognize the busy schedules of our member witnesses, and then try to get our lay witnesses up as quickly 

as we can to proceed with the rest of the hearing. But obviously 

if members have questions for Mr. Hoyer, they are welcome to ask 

them. 

So with that in mind, at this time I would turn to my friend, the 

ranking member of the full committee, Mr. McKeon. 

Mr. MCKEON. Thank you, Chairman Andrews, and good morning, Mr. Hoyer. With that introduction, I am sure you will be very 

brief and hurry up out of here. 

Mr. ANDREWS. That is not what I meant. 

3

Mr. MCKEON. I know that is not what you meant. [Laughter.] 

We are here today to examine H.R. 3195, the ADA Restoration 

Act of 2007. The Americans with Disabilities Act was enacted in 

1990 with broad bipartisan support. Among its purposes was to 

protect individuals with disabilities from discrimination in the 

workplace. By many measures, the law has been a success. It has 

increased awareness of the needs of individuals with disabilities 

and has fostered recognition that these individuals can succeed and 

thrive if given the opportunity. 

I believe the employer community has taken the ADA to heart 

with businesses adopting policies specifically aimed at providing 

meaningful opportunities to individuals with disabilities. Although 

the ADA has been successful, supporters of the ADA Restoration 

Act believe the law needs to be expanded. They argue that it has 

been unduly narrowed, leaving some individuals without protections. I look forward to examining these concerns more fully today. 

At the same time, although there is widespread support for the 

principles of the ADA, concerns have been raised about the unintended consequences that could result from an expansion of the 

law. As this committee well knows, even the best of legislative intentions often produce harmful unintended consequences. Sometimes measures such as this may even harm the very individuals 

they seek to help. 

For instance, it has been argued that the ADA Restoration Act 

would significantly and dramatically expand the number of individuals receiving coverage. This may seem like a well-intended goal. 

Surely we all agree that every individual with a disability should 

be given adequate accommodations and protections. 

However, if the protections are dispersed to virtually every individual in the workplace, as some fear this bill would do, protections 

for those with the most substantial and limiting disabilities could 

be diluted. Resources could be stretched too thin, leaving those who 

need the help the most without the accommodations they deserve. 

I expect to hear discussion today about a series of judicial decisions and how they have impacted the law. Some believe these decisions have clarified and underscored the original congressional intent. Others believe they have appropriately narrowed the application of the ADA. I look forward to a vigorous debate on these questions. 

However, we must proceed cautiously before enacting legislation 

that seeks to overrule judicial findings. Certainly it is the prerogative of Congress to enact laws and ensure those laws are implemented as Congress intended. Yet as we have seen in this committee on one bill after the next, legislative fixes are rarely as 

clear-cut or narrowly drawn as we would hope. All too often in trying to correct one problem, we create several others. 

Such was the case, for instance, with the Ledbetter fair pay bill 

that did not overrule a single decision, as its supporters intended, 

but rather fundamentally altered decades of anti-discrimination 

policy and precedent. I hope and expect that will not be the case 

with the bill before us, the ADA Restoration Act. Although a number of concerns with the legislation have already been identified, I 

am hopeful that as the committee moves forward we can correct 

4

these flaws so that the ADA Restoration Act enjoys the same 

strong support as its predecessor nearly 18 years ago. 

We have with us today an esteemed group of witnesses, including 

the sponsor of the legislation, the House majority leader. I want to 

thank each of the witnesses for joining us as we give careful consideration to this bill. I look forward to a thoughtful, open-minded 

debate that looks not only at the bill’s intended consequences, but 

also those that may not be intended. By ensuring the legislation is 

crafted narrowly and precisely, we can avoid undue burdens and 

litigation traps that will harm the very individuals we are seeking 

to protect. 

Thank you, Chairman Andrews, and I yield back the balance of 

my time.

Prepared Statement of Hon. Howard P. ‘‘Buck’’ McKeon, Senior Republican 

Member, Committee on Education and Labor 

Thank you Chairman Miller, and good morning. We are here today to examine 

H.R. 3195, the ADA Restoration Act of 2007. 

The Americans with Disabilities Act was enacted in 1990 with broad bipartisan 

support. Among its purposes was to protect individuals with disabilities from discrimination in the workplace. 

By many measures, the law has been a success. It has increased awareness of the 

needs of individuals with disabilities, and has fostered recognition that these individuals can succeed and thrive if given the opportunity. 

I believe the employer community has taken the ADA to heart, with businesses 

adopting policies specifically aimed at providing meaningful opportunities to individuals with disabilities. 

Although the ADA has been successful, supporters of the ADA Restoration Act believe the law needs to be expanded. They argue that it has been unduly narrowed, 

leaving some individuals without protections. I look forward to examining these concerns more fully today. 

At the same time, although there is widespread support for the principles of the 

ADA concerns have been raised about the unintended consequences that would result from an expansion of the law. 

As this committee well knows, even the best of legislative intentions often produce 

harmful unintended consequences. Sometimes measures such as this may even 

harm the very individuals they seek to help. 

For instance, it has been argued that the ADA Restoration Act would significantly 

and dramatically expand the number of individuals receiving coverage. This may 

seem like a well-intended goal—surely, we all agree that every individual with a 

disability should be given adequate accommodations and protections. However, if 

the protections are dispersed to virtually every individual in the workplace—as 

some fear this bill would do—protections for those with the most substantial and 

limiting disabilities could be diluted. Resources could be stretched too thin, leaving 

those who need help the most without the accommodations they deserve. 

I expect to hear discussion today about how a series of judicial decisions have impacted the law. Some believe these decisions have clarified and underscored the 

original congressional intent. Others believe they have inappropriately narrowed the 

application of the ADA. I look forward to a vigorous debate on these questions. 

However, we must proceed cautiously before enacting legislation that seeks to 

overrule judicial findings. Certainly it is the prerogative of Congress to enact laws 

and ensure those laws are implemented as Congress intended. Yet as we have seen 

in this committee, on one bill after the next, legislative ‘‘fixes’’ are rarely as clear 

cut or narrowly drawn as we would hope. All too often, in trying to correct one problem, we create several others. Such was the case, for instance, with the Ledbetter 

Fair Pay bill that did not overrule a single decision as its supporters intended, but 

rather fundamentally altered decades of antidiscrimination policy and precedent. 

I hope and expect that will not be the case with the bill before us, the ADA Restoration Act. Although a number of concerns with the legislation have already been 

identified, I am hopeful that as the committee moves forward we can correct these 

flaws so that the ADA Restoration Act enjoys the same strong support as its predecessor nearly 18 years ago. 

5

We have with us today an esteemed group of witnesses including the sponsor of 

the legislation, the House Majority Leader. I want to thank each of the witnesses 

for joining us as we give careful consideration to this bill. 

I look forward to a thoughtful, open-minded debate that looks not only at the bill’s 

intended consequences, but also those that may not be intended. By ensuring the 

legislation is crafted narrowly and precisely, we can avoid undue burdens and litigation traps that will harm the very individuals we are seeking to protect. Thank you 

Chairman Miller, I yield back the balance of my time. 

Mr. ANDREWS. Thank you, Mr. McKeon. 

Steny Hoyer is the majority leader of the House of Representatives. He represents Maryland’s fifth congressional district. Prior to 

being elected majority leader, Congressman Hoyer served 2 terms 

as the Democratic whip. Congressman Hoyer’s service as majority 

leader makes him the highest ranking member of Congress from 

Maryland in the history of Maryland. 

Now serving his 14th term in Congress, which included his stellar service in helping to make the Americans with Disabilities Act 

a reality, he became the longest serving member of the U.S. House 

of Representatives from Maryland in Maryland’s history on June 4, 

2007. 

He is broadly respected on both sides of the aisle. He is a consummate legislator and a dear friend and colleague. We welcome 

him to the committee. 

STATEMENT OF HON. STENY H. HOYER, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF MARYLAND, MAJORITY 

LEADER 

Mr. HOYER. Thank you very much, Mr. Chairman, for that generous introduction. 

Mr. McKeon, thank you for your very thoughtful statement. As 

someone who worked with one of your predecessors, Steve Bartlett, 

for literally scores of hours, over 100 hours trying to do what you 

say is our objective jointly, and that is a piece of legislation which 

is reasonable and can be applied and used and interpreted as the 

Congress intends. That is the purpose of this legislation. 

I am pleased to be joined in the room, if not at the table, with 

Cheryl Sensenbrenner. My cosponsor of this legislation is Jim Sensenbrenner, the ranking member of the Judiciary Committee. Mr. 

Sensenbrenner and I have worked long together on issues regarding disabilities, and I thank his wife, Mrs. Sensenbrenner, who has 

been a leader in her own right on this issue, who is as I say, with 

us today. 

One other person I would like to mention, the real hero of the 

Americans with Disabilities Act, were those with disabilities all 

over this country who came to Congress and told us of the discrimination to which they were subjected. A galvanizing leader in that 

effort was Justin Dart. Many of you knew Justin Dart. His widow, 

Yoshiko, is in the room with us and she has, as she does so often 

have, Justin’s hat with her. His admonition to us was to keep the 

faith and keep the focus on making sure that the opportunities 

promised by the Americans with Disabilities Act became the reality. Yoshiko, thank you for the efforts that you have made. 

I want to thank you for holding this hearing on the ADA Restoration Act. It was introduced last July 26 and it already has 244 

6

cosponsors, a broadly bipartisan cosponsorship. Let me assure you 

of one thing at the outset of my testimony. The purpose of this legislation we believe is straightforward and unambiguous. The bill 

does not seek to expand the rights guaranteed in the landmark 

Americans with Disabilities Act. Instead, it seeks to clarify the law, 

restoring the scope of protection available under the ADA. 

It responds to court decisions that have sharply restricted the 

class of people who can invoke protection under the law. And it reinstates the original congressional intent when we passed the ADA, 

and which I might say was a collaborative effort between President 

Bush, in the late 1980s and 1990, and the Congress in a very bipartisan way. When the first President Bush signed the ADA on 

July 26, 1990, he hailed it as, ‘‘the world’s first comprehensive declaration of equality for people with disabilities.’’ He was absolutely 

correct, and it has been viewed as such around the world. 

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 talent of millions of Americans with disabilities. 

And we were right, as Mr. McKeon has indicated and Mr. Andrews also. 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 United States Supreme Court, have narrowly 

interpreted the ADA, limiting its scope and undermining, I suggest 

to you, congressional intent. 

When we wrote the ADA, we intentionally used a definition of 

‘‘disability’’ that was broad, borrowing from an existing definition 

of the Rehabilitation Act of 1973, our assumption being that that 

law, in effect for 17 years prior to the signing of this bill, had been 

interpreted many times, and therefore we were trying to eliminate 

controversy, rather than create it. We did this because the courts 

have generously interpreted this definition in the Rehabilitation 

Act, and we thought using established language would help us 

avoid a potentially divisive political debate over the definition of 

‘‘disabled.’’

Therefore, we could not have fathomed or anticipated that people 

with diabetes, epilepsy, heart conditions, cancer, and mental illness 

would have their ADA claims rejected and kicked out of court because, with medication, they would be considered too functional to 

meet the definition of ‘‘disabled.’’

In other words, our premise now is that if I discriminate against 

you because you have epilepsy, but you can perform a major life 

function because the medication that you are taking mitigates the 

effects of your epilepsy and prevents seizures, the fact that I have 

discriminated against you and said you can’t have the job because 

you have epilepsy will not be covered under this act. No one on this 

panel, from right to left, Republican or Democrat, could have conceived that such a conclusion would have been reached. 

The Supreme Court decision in Sutton, Kirkingburg, and Murphy 

cases in 1999 and the Toyota Manufacturing case in 2002 are, simply put, misinterpretations of the law. I wrote an op/ed piece in 

7

The Washington Post shortly after one of those decisions stating 

that. In Toyota Manufacturing, for example, Justice O’Connor, 

writing for the court, said the terms, ‘‘substantially limited,’’ and 

‘‘major life activities’’ need to be, and in her words ‘‘strictly interpreted to create a demanding standard for qualifying as disabled.’’

That is a conclusion that I think none of us would have reached 

who voted for the act, nor would President Bush when he signed 

the act. The court went on to say, ‘‘ ‘substantially limited’ means to 

prevent or severely restrict.’’ This was not our intent when Congress passed the ADA. Again, if I discriminate against you because 

you have epilepsy, the fact that your epilepsy does not adversely 

affect your ability to do the job for which you apply seems to be 

irrelevant. It is the discrimination that is relevant. 

We did not anticipate that contrary to our explicit instructions in 

the legislation, the court would eliminate from the act’s coverage 

individuals who have mitigated the effects of their impairment 

with medication or assistive devices, as in Sutton, Murphy and 

Kirkingburg. Again, this is not, I suggest to you, what the Congress 

intended. We intended a broad application of the law. Simply put, 

the point of the ADA is not the disability. It is the discrimination. 

It is the prevention of wrongful and unlawful discrimination. 

Let me be clear—only people who can prove that they have been 

discriminated against on the basis of real or perceived disability 

have potentially valid claims under the ADA. Such people must 

also prove that they are qualified to do the job with or without a 

reasonable accommodation. Mr. Bartlett and I and members of 

Congress and outside advocacy groups, business and consumers, 

prospective employees, all spent a lot of time on this so the act 

would be a reasonable act. 

H.R. 3195, introduced by myself and Congressman Sensenbrenner, and now 242 others, the former chairman of the Judiciary 

Committee, Mr. Sensenbrenner—we designed it to restore the 

broad reach of ADA that we believed was plain in 1990. I think 

President Bush’s statement upon signing reflects that belief. 

Among other things, the bill will amend the definition of ‘‘disability’’ so that people who Congress originally intended to protect 

from discrimination are in fact covered under the ADA. 

Secondly, it will prevent courts from considering mitigating 

measures. The issue was not whether measures could mitigate your 

disability. It was the discrimination based upon your disability, 

such as eyeglasses or medication, when determining whether a person qualifies for protection under the law. 

Thirdly, it will modify findings in the ADA that have been used 

by the courts to support a narrow reading of ‘‘disability.’’ Almost 

every civil rights statute, indeed every civil rights statute we have 

passed, was intended to be and was instructed to be broadly interpreted to affect the objective of eliminating arbitrary and capricious 

discrimination. Specifically, this bill strikes the finding pertaining 

to ‘‘43 million Americans’’ and the findings pertaining to ‘‘discrete 

and insular minority.’’

Let me conclude, Mr. Chairman and Mr. McKeon, 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 our reach. Passage of this legislation is imperaVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
8

tive 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 have a confidence that they will not 

be discriminated against, notwithstanding their ability. 

Thank you, Mr. Chairman. 

[The statement of Mr. Hoyer follows:]

Prepared Statement of Hon. Steny H. Hoyer, Majority Leader, U.S. House 

of Representatives 

Chairman Miller, Ranking Member McKeon, and Members of the Committee: 

Thank you for holding this hearing on H.R. 3195, the ‘‘ADA Restoration Act of 

2007’’—legislation that was introduced last July 26 and which already has been cosponsored by 244 Members from both sides of the aisle. 

Let me assure you of one thing at the outset of my testimony: The purpose of this 

legislation is straight-forward and unambiguous. 

The bill does not seek to expand the rights guaranteed under the landmark Americans With Disabilities Act. 

Instead, it seeks to clarify the law, restoring the scope of protection available 

under the ADA. It responds to court decisions that have sharply restricted the class 

of people who can invoke protection under the law. And it reinstates the original 

Congressional intent when we passed the ADA. 

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. 

When we wrote the ADA, we intentionally used a definition of ‘‘disability’’ that 

was broad—borrowing from an existing definition from the Rehabilitation Act of 

1973. 

We did this because the courts had generously interpreted this definition in the 

Rehabilitation Act. And, we thought using established language would help us avoid 

a potentially divisive political debate over the definition of ‘‘disabled.’’

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

conditions, cancer, and mental illnesses would have their ADA claims kicked out of 

court because, with medication, they would be considered too functional to meet the 

definition of ‘‘disabled.’’

Nor could we have anticipated a situation where an 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. 

The Supreme Court’s decisions in the Sutton, Kirkingburg and Murphy cases in 

1999, and Toyota Manufacturing in 2002 are, simply put, misinterpretations of the 

law. 

In Toyota Manufacturing, 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 that ‘‘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 have mitigated the effects of their 

impairments with medication or assistive devices, as in Sutton, Murphy and 

Kirkingburg. 

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

a broad application of this law. Simply put, the point of the ADA is not disability, 

it is the prevention of wrongful and unlawful discrimination. 

Let me be clear: Only people who can prove that they have been discriminated 

against on the basis of a real or perceived disability have a potentially valid claim 

under the ADA. Such people must also prove that they are qualified to do the job, 

with or without a reasonable accommodation. 

9

H.R. 3195—introduced by myself and Congressman Sensenbrenner, the former 

Chairman of the Judiciary Committee—is designed to restore the broad reach of 

ADA that we believed was plain in 1990. 

Among other things, the bill will: 

• amend the definition of ‘‘disability’’ so that people who Congress originally intended to protect from discrimination are covered under the ADA; 

• prevent courts from considering ‘‘mitigating measures’’—such as eyeglasses or 

medication—when determining whether a person qualifies for protection under the 

law; and 

• modify findings 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’’ and the finding pertaining to ‘‘discrete and insular minority.’’

Let me conclude by noting that this past July 26th, 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 to restoring Congressional 

intent, to achieving the ADA’s promise, and to creating a society in which Americans with disabilities can realize their potential. 

Mr. ANDREWS. Thank you, Mr. Leader. I think that your statement very persuasively demonstrated why 243 of your colleagues 

have taken the position that you have, including many members of 

this committee on both sides of the aisle. So thank you. 

Mr. HOYER. Mr. Chairman, if I could just observe on that issue 

in response to Mr. McKeon’s observations. The ADA passed with 

some 400 votes through the House of Representatives, but it was 

a very long and focused process that we went through in four major 

committees and a number of subcommittees before we got the legislation passed. We worked very hard on it. We think it did what we 

wanted to do. We think, as I have said, that the court cases misinterpret our intent. 

But it is not so much the misinterpretation of our intent that is 

important. It is the consequence for those people to whom we were 

opening the doors, which is what the first President Bush talked 

about in terms of giving them full access to the opportunities 

America provides. 

I thank the chairman for this opportunity to testify. I know you 

look forward to hearing from some folks who are extraordinarily 

committed and courageous and knowledgeable about this issue. 

Thank you, Mr. Chairman. 

Mr. ANDREWS. We thank you. 

Do any of our majority members have a question for the majority 

leader? 

Mr. McKeon, do any of your members have a question for the 

majority leader? 

Mr. HOYER. I want to thank all the members. 

Mr. HOLT. Mr. Chairman? 

Mr. ANDREWS. Yes, Mr. Holt? 

Mr. HOLT. Just to add to your earlier comments, to thank the 

majority leader for his years of effort to prevent the arbitrary discrimination and to support those who are working so hard for access and equal opportunity. 

Mr. HOYER. Thank you. I appreciate that very much. 

Mr. ANDREWS. Thank you, Mr. Hoyer. Now, go make the place 

run. [Laughter.] 

Mr. HOYER. A heavy responsibility, but I will try to carry it out. 

[Laughter.] 

10

Mr. ANDREWS. Yes, sir. 

I would ask if the witnesses from the second panel could approach the table and take their seats. I am going to begin the process of reading their introductions now, so we can get to their testimony. 

Mr. Andrew Imparato is the president and chief executive officer 

of the American Association of People with Disabilities. Prior to 

joining the AAPD, Imparato was general counsel and director of 

policy for the National Council on Disability. Mr. Imparato graduated from Yale College and Stanford Law School. 

Mr. Carey McClure is an electrician and a resident of Griffin, 

Georgia. We welcome him. He enjoys fishing, playing games with 

friends, and spending time with his children and grandchildren. 

We welcome Mr. McClure. 

Mr. David Fram is the director, ADA and EEO services, of the 

National Employment Law Institute. From 1991 to 1996, Mr. 

Fram—did I pronounce your name correctly, Mr. Fram? 

Mr. FRAM. Fram. 

Mr. ANDREWS. Fram. 

Mr. FRAM. Close enough. 

Mr. ANDREWS. Okay. Mr. Fram was policy attorney in the Office 

of Legal Counsel for the Equal Employment Opportunity Commission here in Washington. Prior to joining the EEOC, Mr. Fram was 

with the firm of Hogan and Hartson in Washington. Welcome. 

And finally, Professor Robert Burgdorf is a professor at the University of the District of Columbia, the David A. Clarke School of 

Law. He directs the legislation clinic and teaches disability rights 

law and constitutional law. The United States Supreme Court has 

recognized Professor Burgdorf as, ‘‘the drafter of the original ADA 

bill introduced in Congress in 1988’’—quite a testimony to your 

competence being here today. 

Gentlemen, we welcome you. The rules are that your written 

statements will be accepted into the record of the hearing without 

objection, so everything you have had to tell the committee will be 

part of the permanent record of these proceedings. We would ask 

you to summarize those written statements in 5 minutes or less so 

that we can get to dialogue and questions from the members of the 

committee. 

In front of you, you will see a box with lights on the box. You 

have 5 minutes, as we said, to summarize your views. When the 

yellow light appears, it means you have 1 minute remaining on 

your time. When the red light appears, it means that your 5 minutes is up and we would ask you to briefly wrap things up so we 

can get to questions from the members. 

So we welcome you. We are very glad that you are with us. Mr. 

Imparato, we would ask that you begin with your testimony. 

STATEMENT OF ANDREW IMPARATO, PRESIDENT AND CEO, 

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES 

Mr. IMPARATO. Thank you very much, Congressman Andrews 

and Ranking Member McKeon and everybody on the committee for 

being here and for having a hearing on this very important topic. 

As a Baltimore resident, I also want to acknowledge one of our 

representatives. Congressman Sarbanes, it is great to see you here. 

11

Our children play piano together, so it is good to see you in another 

context. 

You know, I want to start just by saying I am here as an attorney who graduated from law school in 1990, the year that the 

Americans with Disabilities Act was enacted into law. I personally 

have bipolar disorder and manic depression, and I am one of thousands of professionals who have developed our careers in the context of a law that protected our civil rights. 

I have been very open about my disability, and it hasn’t kept me 

from accomplishing my career goals. I think that was one of the 

things that those of you who are here and worked on the ADA the 

first time around were hoping would happen, so I wanted to start 

in that positive vein. 

I am testifying today on behalf of the American Association of 

People with Disabilities, which was founded on the fifth anniversary of the Americans with Disabilities Act. Our mission is to organize the disability community defined broadly so that we have 

more power politically, socially and economically. 

I also want to join Majority Leader Hoyer in acknowledging 

Cheryl Sensenbrenner, who is the chair of my board at the American Association of People with Disabilities. I want to acknowledge 

Majority Leader Hoyer and Congressman Sensenbrenner for their 

leadership on this bipartisan effort. 

The ADA Restoration Act is the top legislative priority for AAPD, 

and we believe it is critically important that the ADA’s protection 

of equal employment opportunity be extended to all the people who 

Congress intended when you passed the ADA in 1990, including 

people with epilepsy, diabetes, cancer, depression, intellectual disabilities, and a whole host of other conditions who have been told 

by federal courts that they aren’t disabled enough to have civil 

rights protections. 

The ADA gave hope to millions of Americans with disabilities 

and we must pass ADA restoration so that we can restore that 

hope for people like my colleague, Carey McClure, who you are 

about to hear from, who have been removed from the ADA’s protections by activist judges. 

On a personal level, because of what the courts have done to the 

ADA, I no longer believe that I can count on the law to protect me 

against employment discrimination. At a minimum if I were to 

bring a case, I would be subject to a barrage of personal questions 

that have nothing to do with my qualifications on the job. 

The ADA is not a disability retirement law, but the Supreme 

Court and the lower federal courts have gone out of their way to 

read the ADA as if it were only for people with disabilities that are 

so significant that they cannot work and cannot take care of themselves. Under this narrow reading, two of the ADA’s strongest legislative champions, Tony Coelho and Bob Dole, would likely be told 

by a federal court that they are not disabled enough to be protected 

by the ADA. 

Employment discrimination cases should be about how a person 

is treated in the workplace. But because of Supreme Court decisions like the 2002 Toyota v. Williams case that Majority Leader 

Hoyer referenced, we have come to a point where the Supreme 

Court has opined that the term ‘‘disability’’ is to be ‘‘interpreted 

12

strictly to create a demanding standard for qualifying as disabled,’’ 

and victims of disability discrimination are finding it harder and 

harder to reach the issue of how they were treated by their employer. 

Citing the Williams case, the 11th Circuit ruled last May in 

Littleton v. Wal-Mart that a 29-year-old with an intellectual disability who was receiving Social Security disability benefits, did not 

submit enough evidence to establish that he had a disability for 

purposes of the ADA. Examining whether Mr. Littleton was substantially limited in a major life activity, the 11th Circuit stated 

that, ‘‘It is unclear whether thinking, communicating and social 

interaction are major life activities under the ADA.’’ The court 

went on to use evidence about Mr. Littleton’s ability to drive and 

be interviewed for a job against him on the issue of his disability. 

I just want to briefly mention the broader policy context for this 

legislation. This is a committee that oversees the Individuals with 

Disabilities Education Act, the ADA, the Vocational Rehabilitation 

legislation, and I ask you as a committee, what is the message that 

you want to send to people with disabilities? Do we want to send 

18 years after the Americans with Disabilities Act the message 

that you should be careful not to achieve to your full potential, be 

careful not to live as independently as possible, or you may lose 

your federal civil rights protections? 

That is the message that the court decisions are sending to people with disabilities. That is the message that a lot of our disability 

benefit programs are sending to people with disabilities. Those programs need to be modernized. 

But certainly in the area of civil rights, we should be sending the 

message that people with disabilities should achieve to their full 

potential, should enjoy their civil rights protections, and cases of 

employment discrimination should turn on whether they are qualified for the job, not how disabled they are. 

Thank you very much for the opportunity to testify. I look forward to the questions. 

[The statement of Mr. Imparato follows:]

Prepared Statement of Andrew J. Imparato, President and Chief Executive 

Officer, American Association of People with Disabilities (AAPD) 

Chairman Miller, Ranking Member McKeon, and Members of the House Committee on Education and Labor: Thank you for the opportunity to provide testimony 

today in support of the Americans with Disabilities Act Restoration Act (ADA Restoration Act) of 2007, H.R. 3195. My name is Andrew J. Imparato and I am the 

President and Chief Executive Officer of the American Association of People with 

Disabilities (AAPD). With more than 100,000 members around the country, AAPD 

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

mission is to organize the disability community to be a powerful force for change—

socially, politically and economically. Founded on the fifth anniversary of the signing of the Americans with Disabilities Act (ADA), AAPD has a strong interest in 

the full enforcement and implementation of this landmark civil rights law. On behalf of the Board, staff and members of AAPD, I applaud you for holding this hearing today and for devoting your attention to one of the top policy priorities of the 

disability community. 

Prior to joining AAPD in 1999, I worked as an attorney at the Disability Law 

Center in Boston, the U.S. Senate Subcommittee on Disability Policy, the U.S. 

Equal Employment Opportunity Commission, and the National Council on Disability. In my role as General Counsel and Director of Policy at NCD, I oversaw a 

multi-year study of federal enforcement of the ADA and other civil rights laws for 

people with disabilities. 

13

I am honored to testify today along with Professor Robert Burgdorf, an attorney 

and disability leader who played such an important role in conceptualizing and 

drafting the ADA when he worked for the National Council on Disability (NCD) in 

the late 1980s. Professor Burgdorf also helped to lead NCD’s more recent effort to 

develop recommendations for the legislative changes needed to restore the ADA to 

its original intent in the wake of a number of highly problematic Supreme Court 

and lower federal court decisions that have severely restricted the scope of the protected class and made it difficult for people with a wide range of disabilities to bring 

claims for discrimination in employment. Since the ADA’s passage, courts have repeatedly told plaintiffs—who are seeking not federal disability retirement benefits 

but simply fair treatment in the workplace—that their conditions do not rise to the 

level of an ADA disability and that they are not protected against discrimination 

under the ADA. 

Having graduated law school in 1990, I am one of many professionals with disabilities who have pursued our careers armed with a federal law designed to ensure 

our equal employment opportunity. I was a third year law student when I experienced my first episode of serious depression. Seemingly overnight, I went from being 

a confident visiting student at Harvard Law School to having difficulty getting out 

of bed and making it through the day. I was blessed to have an incredibly supportive wife and was able to get the support I needed to finish law school and begin 

my career. Since that time, I have lived with recurrent episodes of depression and 

hypomania, with a diagnosis of bipolar disorder or manic depression. I spend approximately six months every year with low energy and low self-confidence followed 

by six months of high energy, high self-confidence, and limited patience. One of the 

symptoms of depression is a tendency to undervalue one’s skills and work capacity, 

and I remember during my first bout with depression wondering if I would be able 

to function in a full-time professional environment. I now know that going to work 

every day in a field that I find compelling has turned out to be one of the strongest 

mood stabilizers in my life. I strongly believe in the therapeutic value of work for 

people with psychiatric conditions and a wide range of disabilities, and I am deeply 

troubled that we have not seen measurable increases in the employment rates of 

people with significant disabilities since the ADA’s enactment in 1990.1 A report out 

from the U.S. Equal Employment Opportunity Commission (EEOC) just this month2

has only added to my alarm and dismay. The report notes a decline in the employment of people with significant disabilities in the federal government every year for 

more than the last decade, in sharp contrast to the overall growth of the federal 

workforce. 

As someone who has been very open about my diagnosis over the course of my 

legal career, I have found it difficult to predict how people may react upon learning 

that I have bipolar disorder. It is my observation, especially in instances in which 

a disability is not visible or readily apparent, that people have the tendency either 

to question whether it is real or to assume that it is so severe that it disqualifies 

that person from particular jobs or assignments. One of our challenges as disability 

advocates is to facilitate the ability of individuals to be open about their disabilities 

and have them be taken seriously and accommodated at work if necessary, all the 

while avoiding overreactions by employers or prospective employers upon learning 

of a diagnosis. Surmounting such attitudinal barriers leads to better employment 

outcomes, greater productivity, and a healthier work climate for the millions of 

Americans who still feel the need to keep their disabilities and chronic health conditions a secret at work. 

For the most part, I have been quite fortunate to have found employers and mentors who have cultivated my talents and created opportunities for me to grow and 

demonstrate my abilities. However, that is not to say that I have been nor will continue to be immune from facing discrimination in the workplace. Until recent years, 

I took comfort in knowing that I had civil rights protections should I ever need 

them. Unfortunately, in light of a number of narrowing court decisions in the last 

decade, I no longer have confidence that the ADA would protect me if I needed it. 

Because of court decisions that have aggressively narrowed the scope of the ADA’s 

protected class, were I to bring a claim of disability employment discrimination 

today, a court would likely conclude that my employment successes and integrated 

family life indicate that my diagnosis is not sufficiently disabling to claim the protections of the ADA, even in light of blatant discrimination on the basis of my bipolar disorder.3 At a minimum, I could expect to be subjected to a battery of questions 

probing into the intimate details of my life and disability that are entirely irrelevant 

to my ability to perform the job. Throughout the country, this has become not the 

exception but the norm for victims of employment discrimination on the basis of disability who attempt to have their day in court. I will highlight several of their stories throughout my testimony. Their stories help to demonstrate that this problem 

14

is not limited to a single outlier judge, a problematic employer or particular geographic region. Rather, the troubling case law, which is voluminous, is indicative 

of a growing nationwide problem that requires a Congressional remedy. 

I am here today to testify that the broad remedial statute that Congress wrote 

and passed in 1990 has fallen victim to a form of judicial activism whereby the U.S. 

Supreme Court and the lower federal courts have made it increasingly difficult for 

individuals with epilepsy, diabetes, amputations, various forms of cancer, and a 

wide range of mental and physical conditions to establish that they have a disability 

for purposes of the ADA. On account of these narrowing court decisions, Americans 

who experience employment discrimination on the basis of their disabilities are increasingly precluded from reaching the issue of whether they were treated fairly in 

the workplace because their cases are being tossed out of court on the issue of 

whether their disability is ‘‘severe enough’’ to come under the protections of the 

ADA. In fact, data suggests that as many as 97% of all disability discrimination 

cases are decided in favor of the employer, often before the individual even has the 

opportunity to demonstrate how their treatment was unfair.4 So much a deviation 

is the ADA’s current state of affairs from original Congressional intent that Members of Congress and the former U.S. Attorney General, involved in its original passage, have repeatedly stated their displeasure5 and their support of H.R. 3195 as 

a remedy to the courts’ damage. 

In 1990, the ADA was heralded as an ‘‘emancipation proclamation’’ 6 for people 

with disabilities. Seventeen years later, on account of judicial activism, we are far 

from having a law that can be counted on to safeguard the fair treatment of people 

with disabilities in the workplace. On the contrary, we have a federal court decision 

from just last May in which Charles Littleton, Jr., a young man with intellectual 

and developmental disabilities who was attempting to start work as a cart pusher 

at a local retailer through the help of a state vocational assistance program, was 

told that he did not qualify for the ADA’s protections after he experienced discrimination during the hiring process. The Eleventh Circuit Court of Appeals noted about 

Mr. Littleton, who lives with his mother, has the cognitive abilities of an 8 yearold, and receives Social Security disability benefits: ‘‘We do not doubt that Littleton 

has certain limitations because of his mental retardation. In order to qualify as ‘disabled’ under the ADA, however, Littleton has the burden of proving that he actually 

is * * * substantially limited as to ‘major life activities’ under the ADA.’’ 7 Later in 

their analysis, the court stated that no evidence existed to support Mr. Littleton’s 

contention that his intellectual disabilities substantially limit him in major life activities, explaining, ‘‘It is unclear whether thinking, communicating, and social 

interaction are ‘major life activities’ under the ADA.’’ 8

How did we end up with such absurd court decisions all over the country, and 

how do we fix them? 

When Congress wrote and passed the ADA in 1990, it included in the statute a 

definition of ‘‘individual with a disability’’ that had been used since 1978 under the 

federal Rehabilitation Act. That three-pronged definition provides protections for individuals with a physical or mental impairment that substantially limits at lease 

one major life activity; individuals with a history of such an impairment; or individuals who are regarded or perceived as having such an impairment and treated unfairly on that basis. As the Supreme Court noted in its 1987 Nassau County School 

Board v. Arline decision, ‘‘By amending the definition of ‘handicapped individual’ to 

include not only those who are actually physically impaired, but also those who are 

regarded as impaired * * *, Congress acknowledged that society’s accumulated 

myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.’’ 9 This key observation, coupled 

with over a decade of federal case law interpreting the definition of ‘‘handicap’’ in 

the Rehabilitation Act broadly, gave Congress every reason to expect that the ADA’s 

definition would receive a similarly broad construction by the courts, thus protecting 

people with all kinds of disabilities against employment discrimination. 

Regrettably, beginning with a trio of Supreme Court decisions in 1999, we have 

witnessed an aggressive effort by the federal courts to narrow the scope of who 

qualifies for civil rights protections under the ADA. In Sutton v. United Airlines and 

two related 1999 decisions,10 the Supreme Court ruled that people who are able to 

function well with the help of ‘‘mitigating measures,’’ including medication, prosthetics, diet, hearing aids, etc., should not be considered substantially limited even 

if they clearly are so in their natural or unmitigated state. This holding, which directly contradicted the positions of the all of the federal agencies charged with enforcing the ADA,11 the eight federal Courts of Appeal that had addressed ‘‘mitigating measures’’ prior to Sutton case,12 as well as the report language of Congressional committees that helped to write the ADA,13 has led to a string of decisions 

in which plaintiffs are told that their serious health conditions do not rise to the 

15

level of ‘‘disabilities’’ and therefore they are not within the law’s protected class. 

That is what happened to Ruth Eckhaus. Ms. Eckhaus, a railroad employee who 

used a hearing aid and who was told by her employer that they ‘‘could not hire 

someone with a hearing aid because [the employer] had no way of knowing if she 

would remember to bring her hearing aid to work,’’ 14 was not protected by the ADA 

when she sought to bring a case of employment discrimination. The court held that 

Ms. Eckhaus ‘‘failed to show that her hearing impairment, when corrected by hearing aids, substantially limits a major life activity,’’ 15 and was therefore not ‘‘disabled’’ for purposes of the ADA’s protections. 

The effect of the Sutton trilogy is that people with all kinds of disabilities, who 

make use of a treatment or support to enable themselves to participate more fully 

and independently in society, including in the workplace, are increasingly finding 

themselves without the ADA’s civil rights protections. Moreover, when employees attempt to establish that they do indeed have a disability by introducing evidence that 

was previously unknown to the employer and that did not form the basis for the 

adverse action being challenged, that evidence is then being used successfully by 

employers to argue that the employee is not qualified in the first place for the position in question.16

The damage caused by the mitigating measures decisions has been magnified by 

other rulings, notably the 2002 Supreme Court decision in Toyota v. Williams.17 In 

Williams, contrary to the clear intent of Congress that the law be construed broadly 

as a remedial measure, the Court ruled that that the definition of disability needed 

to be interpreted strictly ‘‘* * * to create a demanding standard for qualifying as 

disabled.’’ 18 Lower courts certainly took note of the Williams decision, ruling in case 

after case that people with all varieties of disabilities—muscular dystrophy,19 epilepsy,20 traumatic brain injury,21 amputation,22 breast cancer (and accompanying 

masectomy, chemotherapy, and radiation therapy),23 fractured spine24—are not disabled for purposes of the protections of the ADA. Mr. Carey McClure, an electrician 

who has muscular dystrophy, is here today to give his own account of how the Williams decision did just that to his case of employment discrimination in the Fifth 

Circuit. 

The universe of people who could experience discrimination in the workplace on 

the basis of fears, myths, and stereotypes surrounding physical attributes, psychiatric conditions, or medical diagnoses is extensive, and the ADA was created with 

all of these people and circumstances in mind. Unlike an analysis for a disability 

retirement program’s cash benefit, civil rights laws should be construed broadly to 

ensure equality for all Americans. This was the clear intent of Congress and the 

President in 1990, and the ADA Restoration Act seeks to reinstate this objective. 

Disability civil rights laws start with the recognition that disability is a natural 

part of the human experience that in no way should limit a person from participating fully in all aspects of society. Some people are born with their disabilities. 

Others acquire them through accident or injury or while placing themselves in 

harm’s way in service of our country. Unlike other protected classes, disability is 

a category that any person at any time can join. A broad interpretation of the ADA 

is something that every American can benefit from if and when they experience disability discrimination. 

People with disabilities should have every incentive to function to the fullest extent of their abilities and not be punished for their successes nor subjected to a fishing expedition regarding the extent of their disabilities when they seek to challenge 

discrimination at work. Each summer, AAPD places college students with varied 

disabilities into summer internships on the Hill and in the federal Executive 

Branch. Each of our interns has worked exceptionally hard in school and life and 

many have garnered a number of impressive awards and recognitions. As they graduate and enter the workforce, I hope they continue to encounter work environments 

that appreciate their work ethic and focus on their skills and abilities rather than 

on their disabilities. In light of the Supreme Court’s restrictive interpretations of the 

ADA, however, I fear, given how much they have been able to achieve, whether they 

too would be shut out of the ADA’s protections should they ever require them. 

I think, too, of our country’s returning Iraq and Afghanistan war veterans. I think 

of the estimates that as many as 60-70% of all wounded returning veterans may 

have traumatic brain injury (TBI).25 Many others are returning with post-traumatic 

stress disorder (PTSD), epilepsy, depression, hearing impairments, loss of limbs, and 

other complex conditions. Once these veterans begin to return to the workforce in 

greater numbers, what trends will emerge regarding their integration and civil 

rights protections in the workplace, given that case law surrounding each of these 

disabilities is increasingly dismal? 

Moreover, my two sons, ages 9 and 14, may be genetically predisposed to bipolar 

disorder. What civil rights legacy can we promise them if we do not right this law? 

16

As members of the Education and Labor Committee, you know that our nation’s 

policies under the Individuals with Disabilities Education Act, the Rehabilitation 

Act, the ADA and other laws are designed to promote equality of opportunity, full 

participation, independent living and economic self-sufficiency for people with disabilities. Due to a series of decisions limiting the scope of the ADA, probably best 

exemplified by the recent Littleton decision, people with disabilities are being forced 

to give up their civil rights protections when they try to improve their functioning 

and participate in the economic mainstream. Whereas Congress intended the ADA 

to tear down the shameful wall of exclusion that had barred people with a wide 

range of disabilities from achieving to their full potential, the federal courts have 

contorted the law to the point where they have created a new wall that is keeping 

disabled victims of discrimination from ever reaching the issue of whether they were 

treated fairly or discriminated against at work. 

The ADA Restoration Act, H.R. 3195, is a straightforward bill that will make it 

crystal clear that employment discrimination cases should be about how a person 

was treated at work and not about whether that person’s impairments make it hard 

to brush one’s teeth,26 comb one’s hair,27 or have children.28 The bill will refocus 

the courts on an employee or applicant’s qualifications and performance and away 

from intimate details about their disabilities that are irrelevant to the workplace 

and often unknown to their employer or prospective employer. It will restore civil 

rights protections for people with epilepsy, diabetes, cancer, depression, amputations, and a whole host of physical and mental disabilities who have been denied 

their day in court because of activist judicial rulings that ignore legislative history 

and Congressional intent. It will end the perverse incentive created by court rulings 

that punish people who successfully manage their disabilities and enter the workforce. 

I am delighted that H.R. 3195 has attracted broad bipartisan support in the 

House under the strong leadership of Congressmen Steny Hoyer and Jim Sensenbrenner, and I encourage this Committee to mark it up and send it to the House 

floor with strong bipartisan support. H.R. 3195 will recreate the level playing field 

that Congress had in mind when it passed the ADA in 1990. It will send a message 

to the activist bench that they should adhere to Congressional intent and not rewrite laws to suit their own political or policy agenda. It will not solve all of the 

many challenges that people with disabilities continue to face in the workplace, but 

it will reestablish a solid foundation on which we can build policies and programs 

to bring more people with disabilities into the economic mainstream. 

Thank you again for the opportunity to provide testimony, and I look forward to 

your questions. 

ENDNOTES

1Despite 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). 2 ‘‘Improving the Participation Rate of People with Targeted Disabilities in the Federal Workforce,’’ available at: www.eeoc.gov/federal/report/pwtd.html, noting that while federal government grew by 135,000 workers between fiscal years 1997 and 2006, the number of federal employees with significant disabilities decreased from 28,671 to 24,442, leaving them at 0.94 percent of the overall federal workforce. 3 In fact, case law already exists which has found bipolar disorder not to be a disability under 

the ADA. Johnson v. North Carolina Dep’t of Health and Human Servs., (M.D.N.C. 2006). 4See 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’’). 5Press release of Majority Leader Steny Hoyer, ‘‘Hoyer Introduces Americans with Disabilities 

Restoration Act of 2007,’’ available at: http://hoyer.house.gov/Newsroom/

index.asp?ID=955&DocumentType=Press+Release, stating: ‘‘Let me be clear: This is not what 

Congress intended when it passed the ADA. We intended a broad application of this law. Simply 

put, the point of the ADA is not disability, it is the prevention of wrongful and unlawful discrimination;’’ Emailed letter of the Honorable Dick Thornburgh, Former Attorney General of the 

United States, to the Honorable Orrin Hatch, requesting support of the ADA Restoration Act 

of 2007, available at: http://www.aapd.com/News/adainthe/071025dt.htm, referencing the current circumstances as an ‘‘untenable situation’’ and stating: ‘‘Under a series of court decisions, 

the definition of who qualifies as an ‘individual with a disability’ has become so restrictive and 

difficult to prove that millions of people we intended to protect from discrimination—including 

people with epilepsy, diabetes and cancer—are no longer covered by the law’s protections.’’

17

6See 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. 7Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986, at *4 (11th Cir. May 

11, 2007). 8 Id., at *3. 

9 Nassau County School Board v. Arline, 480 U.S. 273, at 283-284 (1987). 

10Sutton v. United Airlines, 527 U.S. 471 (1999); ); Murphy v. United Parcel Service, Inc., 

527 U.S. 516 (1999); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 11Sutton, 527 U.S. at 496-97 (Stevens, J., dissenting). 12 Id., (listing cases). 13See, e.g., Senate Committee on Labor and Human Resources, S. REP. NO. 101-116 at 121 

(1989), stating: ‘‘[W]hether a person has a disability should be assessed without regard to the 

availability of mitigating measures, such as reasonable accommodations or auxiliary aids.’’ 14 Eckhaus v. Consolidated Rail, Corp., No. Civ. 00-5748 (WGB), 2003 WL 23205042, at *5 

(D.N.J. Dec. 24, 2003). 15 Id., at *9. 16See Claudia Center & Andrew J. Imparato, Redefining ‘‘Disability’’ Discrimination: A Proposal to Restore Civil Rights Protections for All Workers, 14 STAN. L. & POL’Y REV. 321 

(2003). 17Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). 18 Id., at 197. 19McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL 21766539 (5th Cir. 2003). 20 Equal Employment Opportunity Comm’n v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001). 21Phillips v. Wal-Mart Stores, Inc., 78 F. Supp. 2d 1274 (S.D. Ala. 1999). 22Williams v. Cars Collision Center, LLC, No. 06 C 2105 (N.D. Ill. July 9, 2007). 23Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 183 (D.N.H. 2002). 24Williams v. Excel Foundry & Machine, Inc., 489 F.3d 309, 311 (7th Cir. 2007) 25 Institute of Medicine, the National Academies, Evaluating the HRSA Traumatic Brain Injury Program, Washington, D.C.: The National Academies Press, Eden, Jill and Rosemary Stevens, Editors, 2006, p. 41. 26McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL 21766539 (5th Cir. 2003). 27 Id. 28Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 183 (D.N.H. 2002). 

Mr. ANDREWS. Mr. Imparato, thank you, and I apologize for leaving briefly in the middle of your testimony. I have read it and appreciate it. I think that your personal insights further amplify the 

scholarship and work you have done here. Thank you very, very 

much. 

Mr. McClure, welcome to the committee. We are happy to have 

you here. 

STATEMENT OF CAREY MCCLURE, ELECTRICIAN 

Mr. MCCLURE. Thank you very much. 

Mr. Chairman and members of the committee, good morning. My 

name is Carey McClure, and I am from Griffin, Georgia. I am an 

electrician and I would like to thank you for holding his hearing 

to give me a chance to tell my story. 

I have been an electrician for over 20 years. I have always wanted to be an electrician, and I have loved to do it. When I was 15 

years old, I was diagnosed with facioscapulohumeral muscular dystrophy. As a result of my condition, the muscles in my face, back 

and upper arms are weak. I have constant pain in my shoulders, 

and I will now show you how high I can lift my arms in the air. 

That is the highest they will go. 

Like so many other people with disabilities, I found ways to live 

with my condition. For instance, I use a step-stool in the kitchen 

so I can reach the cabinets. When I shampoo my hair, I support 

one hand with the other to get my hand over my head, like this. 

I do much the same to comb my hair, brush my teeth. Instead 

of wearing T-shirts, I generally wear button-down shirts, which 

don’t require me to raise my arms over my head. When I eat, I hold 

18

my head over my plate and prop my elbow on the table so that I 

can raise the fork or spoon to my mouth. The point is, my muscular 

dystrophy does not stop me from living my life. There is virtually 

nothing I can’t do. 

Unfortunately, General Motors didn’t feel the same way. My father and brother both work for General Motors, so you could say 

that General Motors practically raised me. General Motors supported our family, it pays well, and offers good benefits. For as long 

as I can remember, it has been a dream job for me. 

In September, 1999, I applied for an electrical position at the 

General Motors assembly plant in Arlington, Texas. The following 

month, General Motors invited me to fly out to its Texas assembly 

plant and take a written and practical exam. I passed both of them. 

In December of 1999, GM sent me a letter and offered me a job and 

asked me to take a pre-employment physical. 

I called back and accepted the job and scheduled an appointment 

with the GM plant medical director for January 5, about a week 

before I started my job. In the meantime, I got ready for the big 

move. I quite my electrical job at the roofing company, sold my 

house in Griffin, Georgia, withdrew my daughter from high school, 

and packed up all the things we needed in anticipation of the relocation. 

When I got to Texas, I went to the plant medical director’s office 

for my physical exam. The physical went fine until the doctor 

asked me to lift my arms above my head, which I could not do. The 

doctor asked me hypothetically how I could reach electrical work 

above my head. I told him I would get a ladder. He asked, what 

if a ladder would not reach high enough? I told him I would get 

a taller ladder. [Laughter.] 

For over 20 years, I have been an electrician. For over 20 years, 

I have been working on things above my head without a problem. 

Sometimes I throw my arms above my head and lock my elbows. 

Most of the time there is something that I can prop my arm 

against so I can reach it just like if I am brushing my teeth. Other 

times, all it takes is a step-stool or to have a ladder or a hydraulic 

lift as other electricians use. When I toured the GM plant, I saw 

people using hydraulic lifts just like I used on every other job I 

had. 

But this doctor wouldn’t hear it. He didn’t think I could do the 

job that I have been doing my entire life. He recommended that 

GM revoke my job offer, and that is exactly what they did. An assistant gave me the bad news, and I just stood there stunned. I had 

just quit the previous job, sold my house, packed my bags, relocated my family from Georgia to Texas for the dream job I had 

been trying to get my whole professional life. General Motors had 

just taken my dream job away from me. 

I didn’t know much about the ADA, but I knew that I had a disability and GM took the job away from me because of my disability, 

not because I couldn’t do the work of an electrician. I can do the 

job. That is the bottom line. So I found a lawyer and we filed a lawsuit. During my lawsuit, General Motors asked me all sorts of personal questions like how I comb my hair, how I brush my teeth. 

They asked me how I play with my grandchildren. They asked me 

19

how I bathe and how I clean my house. They even asked me how 

I would have intercourse. 

They asked me things that they didn’t need to know, that did not 

have anything to do with work at the GM plant. Even though GM 

revoked my job offer for my disability, GM lawyers started arguing 

with the court that I did not have a disability at all. Well, you can’t 

have it both ways. Am I disabled or not? If I am, then the ADA 

should have been there to protect me. If I am not, then I should 

be working with my father and brother both at General Motors 

right now. 

Unfortunately, the courts agreed with GM. The trial court said 

to me, ‘‘The ability to overcome the obstacles that life has placed 

in my path is admirable,’’ but that in light of my abilities, I was 

no longer disabled because I had adapted so well to living with 

muscular dystrophy, and made myself a productive member of the 

workforce for over 20 years, the court said I wasn’t protected by the 

ADA. That doesn’t make any sense to me. 

As I told the court who heard my case, if someone who was suffering from an undisputable muscular dystrophy is not an individual with a disability under the ADA, then who is? The court told 

me that they were just interpreting the ADA like the Supreme 

Court told them to, and that my problem was with the Supreme 

Court, not them. Well, you can do something about the Supreme 

Court’s interpretation of the ADA. For the sake of people with disabilities like me who want to work, but are discriminated against, 

I hope you will. 

Thank you very much for giving me the opportunity to speak. 

[The statement of Mr. McClure follows:]

Prepared Statement of Carey L. McClure, Electrician 

Mr. Chairman and members of the Committee: Good Morning. My name is Carey 

McClure, and I am an electrician from Williamson, Georgia. I’d like to thank you 

for holding this hearing today, and for giving me a chance to tell my story. 

I have been an electrician for over twenty years. I earned a technical certificate 

from the United Electronics Institute after high school and then worked my way up 

from apprentice electrician to journeyman electrician. I’ve always wanted to be an 

electrician, and I love what I do. It is my hobby, and it is my fun. 

When I was fifteen years old, I was diagnosed with facioscapulohumeral muscular 

dystrophy. ‘‘Muscular dystrophy’’ means progressive muscle degeneration. 

‘‘Facioscapulohumeral’’ refers to the parts of my body that are most seriously affected: the muscles in my face, shoulder blades, and upper arms. There are nine 

types of muscular dystrophy, and this is mine. As a result of my condition, the muscles in my face, back, and upper arms are weak. I’m unable to lift my arms above 

shoulder-level, and I have constant pain in my shoulders. 

But like so many other people with disabilities, I’ve found ways to live with my 

condition. For instance, I have a stepstool in my kitchen that I use to reach my cabinets. When I shampoo my hair, I support one hand with the other to get it over 

my head, or I bend forward so my hands can reach my head. I take showers because 

it’s easier for me to bathe all of my body parts standing rather than sitting down. 

When I comb my hair or brush my teeth, I prop up my elbow with the other hand. 

Instead of wearing T-shirts, I generally wear button-down shirts, which don’t require me to raise my arms over my head. To put on a T-shirt, I bend at the waist 

and pull the back of the shirt over my head. When I eat, I hold my head over my 

plate and prop my elbows on the table so that I can raise my fork or spoon to my 

mouth. And while I love my grandchildren, and play actively with them, I don’t take 

care of them alone for fear I might suddenly need to lift them above chest-height 

to get them out of harm’s way. 

The point is, my muscular dystrophy doesn’t stop me from living my life. There 

is virtually nothing I can’t do. Unfortunately, General Motors (GM) didn’t feel the 

same way. 

20

My father and brother both work for GM, so I guess you could say GM practically 

raised me. GM supported our family, and it pays really well and offers good benefits. It’s a great place to work, and for as long as I can remember, it’s been my 

‘‘dream job.’’

I applied for an apprenticeship with GM three times, but those positions were put 

on hold and never filled. I applied for a journeyman electrician position another 

time, but there were 400 applicants for seven or eight positions and so I didn’t get 

that job either. 

In September 1999, I gave it another shot and responded to a newspaper ad seeking applicants for electrician positions at the GM assembly plant in Arlington, 

Texas. This time was different. In November 1999, GM invited me to fly out to its 

Texas assembly plant to take a written exam and a practical, ‘‘hands-on’’ exam. I 

passed both of them. In December 1999, GM sent me a letter offering me the job 

and asked me to take a pre-employment physical. I called back and accepted the 

job, and scheduled an appointment with GM’s plant medical director for January 

5th—about a week before my start date. 

In the meantime, I got ready for the big move. I quit my electrician job with a 

roofing company; sold my house in Griffin, Georgia; withdrew my daughter from her 

high school; and packed up all of our things in anticipation of relocating. 

When I got to Texas, I went on a tour of my new plant. From the tour and the 

job description in the ad I answered, I knew that the job I’d be filling would be easier than the one I had left in Georgia, and would also pay better wages. At my prior 

job with the roofing company, I was doing electrical maintenance on a production 

line. That meant that I performed two completely different types of jobs: I was both 

an electrician and a mechanic. If there was a 400-pound motor sitting there that 

needed replacing, I’d have to disconnect the wires, unbolt the motor, move the 

motor, put the new motor in, then wire it back up. The position I’d accepted at GM 

was much more specialized. There, I would be doing just the job of an electrician—

I’d only have to disconnect the wires and then let the GM mechanics take care of 

the rest. 

There was a doctor’s office in the plant where I went for my physical exam. It 

was a normal physical exam like those I’d taken and passed for all of my other jobs. 

The physical went fine until the doctor asked me to lift my arms above my head, 

which I could not do. 

The doctor asked me hypothetically how I would reach electrical work above my 

head. I told him I’d get a ladder. He asked what I’d do if the work was higher than 

the ladder. I told him I’d get a taller ladder. 

For over twenty years, I’ve been an electrician. For over twenty years, I’ve worked 

on things above my head without a problem. I’ve run pipe all the way up against 

the ceiling. I’ve worked on lights all the way up against the ceiling. Sometimes I 

throw my arms up in the air and lock my elbows. Most of the time, there’s an object 

next to me that I can prop my arms on, just like I do when I’m brushing my teeth. 

Other times, all it takes is a step-stool like I have for my cabinets, or a ladder or 

a hydraulic lift like many electricians use. When I toured the GM plant, I saw people using those hydraulic lifts just like at every other job I’d had. 

But this doctor wouldn’t hear of it. He didn’t think I could do a job that I’d been 

doing my entire life, even though he later admitted that he didn’t even know what 

the functions of my electrician job were. Regardless, he recommended that GM revoke my job offer, and that’s exactly what GM did. An assistant gave me the bad 

news, and I just stood there stunned, in the middle of the doctor’s office lobby, and 

I didn’t know what had hit me. I had just quit my previous job, had sold my house, 

packed my bags, and relocated my family from Georgia to Texas for the dream job 

I’d been trying for my whole professional life. GM had just taken my dream job 

away from me. 

I didn’t know much about the Americans with Disabilities Act, but I knew that 

I had a disability, and that GM took my job away because of my disability—not because I couldn’t work as an electrician. I can do that job—that’s the bottom line. 

So I found a lawyer, and we filed a lawsuit. 

During my lawsuit, GM’s attorney asked me all sorts of personal questions like 

how I comb my hair and how I brush my teeth. They asked me how I play with 

my grandchildren. They asked me how I bathe, and how I clean my house. They 

asked me how I drive a car. They even asked me how I have intercourse. They 

asked me things they don’t need to know—things that don’t have anything to do 

with my ability to work at GM. 

Even though GM revoked my offer because of my disability, GM’s lawyers started 

arguing to the federal courts that I didn’t have a disability at all. Well, you can’t 

have it both ways—am I disabled or not? If I am, then the ADA should have been 

21

there to protect me. If I’m not, then I should be working with my father and my 

brother at GM right now. 

Unfortunately, the courts agreed with GM. The trial court said that my ‘‘ability 

to overcome the obstacles that life has placed in my path is admirable,’’ but that 

in light of my ability, I was no longer disabled. Basically, the court punished me 

for making myself a productive member of the workforce for over twenty years. Because I’d adapted so well to living with muscular dystrophy, the court said I wasn’t 

protected by the ADA. That doesn’t make any sense to me. 

I lost my case. I lost my house. And I lost two jobs—the electrician job with the 

roofing company that I left, and the electrician job that GM gave and then took 

away from me. But I have no ill will towards GM. I still buy vehicles from them, 

and I’d work there today if I could. That’s all I’ve ever wanted to do. 

I found another job after GM revoked its offer, but it took me six months to find 

one that paid the same as my old job with the roofing company, and it still didn’t 

pay as high as GM. In my first evaluation at that job, my boss ranked me excellent 

in five out of seven categories and next highest on the other two. 

I enjoy being an electrician, and I’m good at it. I wish that GM had given me the 

chance to prove that I can do the job, and I wish that the ADA had been there to 

protect me when GM didn’t give me that chance. Unfortunately, there are many 

people with disabilities like me who are not getting the protection they deserve because the courts are telling them that they’re not ‘‘disabled.’’

As I told the courts who heard my case, ‘‘if one who suffers from undisputed muscular dystrophy is not an individual with a disability under the ADA,’’ then who is? 

The courts told me that they were just interpreting the ADA like the Supreme 

Court told them to, and that my problem was with the Supreme Court—not them. 

You can do something about the Supreme Court’s interpretation of the ADA. For 

the sake of people with disabilities like me who want to work but are discriminated 

against, I hope you will. 

Thank you for giving me the opportunity to speak before you today. 

Mr. ANDREWS. Mr. McClure, thank you very much for coming 

and telling us meaningful stories about your life that will help us 

make the decisions we need to do. Thank you very, very much. We 

appreciate it. 

Mr. Fram, welcome. I understand you came here as a page, and 

have extensive Washington history. Welcome back. 

STATEMENT OF DAVID K. FRAM, DIRECTOR, ADA & EEO 

SERVICES, NATIONAL EMPLOYMENT LAW INSTITUTE 

Mr. FRAM. Thank you. My name is David Fram, and I am the 

director of ADA training for the National Employment Law Institute. I have provided ADA training to most federal agencies, including the House, and most Fortune 500 companies. My book, Resolving ADA Workplace Questions, which is now in its 23rd edition, 

analyzes the Supreme Court cases and all of the federal Courts of 

Appeals cases on the issues. Prior to my work with the Institute, 

I was a policy attorney in the ADA Division of the EEOC. 

It is because of my work on both sides of the issue that I have 

been asked to address some of my concerns about the ADA Restoration Act. It is important to first look at what the law currently 

does. The ADA does two things. It says you can’t discriminate 

against somebody because of a disability, and it says you have to 

provide a reasonable accommodation to an otherwise qualified individual with a disability. And of course, it defines ‘‘disability’’ as 

being an impairment that substantially limits a major life activity. 

Courts have very broadly over the years determined what is an 

impairment. Any disorder is an impairment, so the flu, a broken 

finger, a scar could be an impairment. The reason these aren’t disVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
22

abilities is because they don’t substantially limit a major life activity. ‘‘Substantially limits’’ looks at duration, looks at seriousness. 

If somebody does have a disability, the next question, of course, 

is whether that person is qualified. Do they have the background 

and can they do the essential functions of the job? 

Now, let us look at the three major changes proposed by the Restoration Act. First, the act would change the definition of ‘‘disability’’ to cover any impairment, removing the ‘‘substantial limitation’’ requirement. So there would be no degree of seriousness or 

duration. So a chipped tooth, the flu, a broken finger would automatically be disabilities. It also means that alopecia, having a hair 

impairment like mine, would be an automatic disability. And it is 

just not correct to say that this restores the ADA to what it was. 

The statute on its face, the Rehab Act on which it was based, the 

regulations from the EEOC—all say there has to be a substantial 

limitation of a major life activity. In all of my years at the EEOC 

and with the Institute, I have never heard anyone argue that the 

ADA should cover all impairments. 

Question—Would it be good policy to change the law in this 

sweeping way? Now, I understand that proponents want to, validly 

want to change the law so courts focus on whether there has been 

discrimination, instead of focusing on whether there is a disability. 

The problem is that the ADA is not like the typical discrimination 

law. It requires reasonable accommodation. So the proposed 

changes would potentially mean that an employer has to give an 

accommodation to somebody like me so I can get a hair transplant, 

and that can’t be what Congress intended. 

Also, since employers have limited resources, it means that somebody with the flu could be competing with somebody who has lung 

cancer for the modified schedule. And that couldn’t be what Congress intended. Remember, the ADA also prohibits disability-related questions of employees unless they are specifically about the 

job. So if disability equals impairment, that makes it flatly illegal 

for an employer, for a supervisor to ask an employee, ‘‘oh, do you 

have a cold or how did you break your leg.’’ And that can’t be what 

Congress intended. 

An even more basic question is whether the ADA is intended to 

give someone with a sprained ankle the same protection as somebody who has paraplegia. It is intended to give somebody with the 

flu, put that person in the same category with somebody with 

breast cancer? In my opinion, that can’t be what Congress intended. So it seems to me the definition of ‘‘disability’’ should not 

be changed, but it is also clear that courts have excluded individuals who Congress did want to protect under the law. 

Now, a fair reading of the legislative history supports the proponents’ view for the second proposed change, which is that the law 

should be read expansively and that the seriousness of a person’s 

condition should be analyzed as if that person were not taking 

medication. Congress wanted to do this to prevent people from 

being thrown out of court because they took steps to alleviate their 

conditions. 

The Supreme Court decided, of course, not to follow the legislative history. In Sutton v. United Airlines, they considered whether 

the vision impairment of the plaintiffs who wore glasses should be 

23

analyzed with or without their glasses, and decided instead of just 

carving out an exception for glasses, they said, no, we are going to 

look at everyone with their mitigating measures. And of course, 

after Sutton, lots of plaintiffs, as you see in the written materials 

I have submitted, were thrown out of court because they took medication. Is that what Congress intended? 

The third change by the act would put the burden of proof on employers to show that an individual is not qualified. Now, in the interest of time, I won’t get into that right now except to say that 

this is simply inconsistent with every other employment discrimination law. 

So it boils down to this. The legislation would restore the ADA 

in that an individual’s condition should be analyzed without medication or mitigating measures, but to change the definition of ‘‘disability’’ to cover, literally cover everyone in America wouldn’t be restoring the ADA. It would certainly lead to a deluge of unintended 

consequences. 

Thank you. 

[The statement of Mr. Fram follows:]

Prepared Statement of David K. Fram, Esq., Director, ADA & EEO Services, 

National Employment Law Institute 

It is a pleasure to be here as you consider changes to the Americans with Disabilities Act, the most important piece of civil rights legislation of our generation. 

It is especially great to be back in this place where I formed wonderful memories 

of my teenage years—as both a Congressional Page, and as an intern for Senator 

Paul Sarbanes. And what an honor it is to be in front of this Committee, with representatives from my hometown, Baltimore (Congressman Sarbanes), and my current home, Long Island (Congressman Bishop). 

My name is David Fram, and I’m the Director of ADA and EEO Services for the 

National Employment Law Institute. In this role, I train a wide range of groups on 

how to comply with and how to enforce the ADA. These groups include virtually 

every federal agency (including the U.S. House of Representatives and the U.S. Senate), most Fortune 500 companies, colleges and universities, non-profits, unions, and 

plaintiffs’ organizations. I have also written a book, Resolving ADA Workplace Questions, now in its 23rd edition, which analyzes every major ADA case from the Supreme Court and the federal Courts of Appeals, as well as any new positions from 

the Equal Employment Opportunity Commission. 

Prior to my work with the Institute, I was a Policy Attorney at the EEOC from 

1991 through 1996. In that job, I was part of the ADA Division, working on EEOC 

documents interpreting and enforcing the ADA and the Rehabilitation Act. 

A number of employers and employer-oriented organizations expressed concerns 

to me about the changes proposed by the ADA Restoration Act. Because of my experience on both sides of these issues, these groups have encouraged me to testify concerning my personal concerns on the proposed legislation. I cannot in all candor, 

however, tell you that these groups will necessarily agree with everything I’m about 

to say. 

Before anyone can intelligently discuss those changes, it’s critical to briefly review 

the most important provisions of the ADA as it currently exists. 

The employment provisions of the ADA accomplish two major goals. First, the law 

says that an employer cannot discriminate against a qualified individual with a disability in, among other things, hiring, firing, employment terms and conditions, and 

insurance coverage. Second, the law says that these non-discrimination provisions 

require an employer to provide ‘‘reasonable accommodations’’ to otherwise qualified 

individuals, so that these individuals can perform the essential functions of the job.1

In addition to these basic provisions, the ADA also prohibits employers from asking any disability-related questions or requiring medical examinations of applicants, 

and allows employers to ask these questions and require these exams of employees 

only when these are considered ‘‘job-related and consistent with business necessity.’’ 2

As you have heard from other witnesses, the law specifically defines someone with 

a ‘‘disability’’ as an individual who currently has, has a ‘‘record of,’’ or is ‘‘regarded 

24

as’’ having an ‘‘impairment’’ that ‘‘substantially limits’’ a ‘‘major life activity.’’ 3 This 

language was specifically taken from the Rehabilitation Act of 1973.4 Courts have 

interpreted broadly what is considered an impairment—any physical or mental disorder is an impairment.5 So, this would include a chipped tooth, the flu, or a broken 

finger. The reason these conditions would not be considered disabilities is that they 

do not ‘‘substantially limit’’ a major life activity. In determining whether an impairment ‘‘substantially limits’’ a major life activity, courts analyze the individual’s abilities compared to those of the average person.6 Ever since the ADA came into force, 

one important question has been whether to analyze the individual’s condition in 

a medicated or mitigated state (if s/he medicates or mitigates), or whether to analyze what the condition would be like without medication or mitigation. On its face, 

the statutory language arguably suggested that an individual should be analyzed 

with medications or mitigating measures. However, based on the ADA’s legislative 

history, the EEOC instructed employers to look at what the individual’s condition 

would be like without medication or mitigation, and many federal courts followed 

this approach.7

Indeed, shortly before the Supreme Court weighed in on the issue, the Fifth Circuit Court of Appeals noted the ‘‘most reasonable reading of the ADA’’ was to consider mitigating measures in determining when an individual had a disability.8 But, 

the court also pointed out that the EEOC’s Guidelines, the legislative history and 

the majority of other federal courts provided that an individual’s mitigating measures should not be considered in determining whether an individual had a disability.9 The Fifth Circuit adopted a middle of the road approach recognizing that 

while Congress intended that courts should consider people in their unmitigated 

state in deciding whether an individual was disabled, it didn’t make sense for courts 

not to consider some mitigating measures in situations where a person’s condition 

has been permanently corrected or ameliorated. In fact, the court held that serious 

conditions similar to those mentioned in the legislative history and EEOC guidelines, such as diabetes, epilepsy, hearing impairments, etc. would be considered in 

their unmitigated state.10 The Supreme Court, however, held the opposite when it 

decided Sutton v. United Airlines,11 which I’ll talk about shortly. 

Once the individual is determined to have a covered disability, the next question 

is whether the individual is ‘‘qualified,’’ which means that the individual satisfies 

the job’s background requirements and that s/he can perform the job’s ‘‘essential 

functions,’’ with a reasonable accommodation if needed.12 As with other discrimination laws, courts use the McDonnell Douglas framework,13 requiring the individual 

to show as part of his prima facie case that s/he has a disability and that s/he is 

qualified. In this regard, the courts have put the burden of proof on the employer 

to demonstrate which functions are essential, and then put the burden on the individual to show that s/he can do those essential functions.14

I would like to address the three major changes proposed by the ADA Restoration 

Act: (1) changing the definition of disability to cover all impairments, regardless of 

the seriousness of the impairment; (2) reversing the Supreme Court cases instructing courts to analyze conditions as controlled with medication or mitigating measures if the individual uses such measures; and (3) changing the burden of proof to 

require an employer to show that an individual is not qualified. 

1. Changing the Definition of Disability 

The ‘‘ADA Restoration Act’’ would change the definition of disability to cover any 

physical or mental impairment, and to remove the requirement that the impairment 

‘‘substantially limit’’ a major life activity. This, therefore, does away with the notion 

that the impairment has to have some degree of seriousness and some degree of duration. As a result, a chipped tooth, the flu, and a broken finger would automatically 

be covered as disabilities. It also means that alopecia (having a hair impairment, 

like mine) would be a covered disability. 

It is simply incorrect to say that this restores the ADA to what it once was. The 

statute, on its face, states that the impairment has to substantially limit a major 

life activity.15 The Rehabilitation Act, on which the ADA was based, states that the 

impairment has to substantially limit a major life activity.16 The EEOC’s regulations (and the Appendix to the regulations, and the EEOC’s own Compliance Manual instructions on the definition of disability), all state that the impairment must 

substantially limit a major life activity.17 In fact, in my years at the EEOC and in 

all of my years with the Institute, I’ve never heard anyone say that the ADA was 

meant to cover people with any impairment. So, it is not accurate to say that this 

is a ‘‘restoration’’ act. Rather, this would be a new law that is vastly broader than 

the ADA. 

Would it be good policy to change the law in such a sweeping way? I understand 

that the proponents of the bill want to change the ADA so that the issue becomes 

25

whether discrimination has occurred, rather than focusing on whether an individual’s condition is a disability.18 The problem with this view is that the ADA is not 

like the traditional discrimination laws. The ADA goes several steps further. As 

we’ve talked about, it requires reasonable accommodation for the individual with a 

disability. In fact, as the Supreme Court has noted, the ADA requires employers to 

give preferential treatment to individuals with disabilities. If the proposed changes 

were enacted, it would mean that an employer would have to provide reasonable accommodation for the person with a chipped tooth or the flu. An employer would 

have to provide reasonable accommodation for someone with a sprained ankle. An 

employer would have to provide reasonable accommodation for someone who is bald 

who wants time off to get a hair transplant. This couldn’t be what Congress intended. 

In addition, rewriting the definition of ‘‘disability’’ would have detrimental effects 

in the workplace. Because employers have limited resources, it means that the person with a sprained ankle could be competing with the veteran who has no legs for 

the accessible parking space. It means that the person with the flu could be competing with someone with AIDS for the modified schedule. This couldn’t be what 

Congress intended. 

The ADA also covers employer-provided health insurance. What this means is 

that disability-based distinctions in health insurance plans might be illegal.19 If the 

definition of disability were changed to cover all impairments, employers could be 

acting illegally if they had different medical coverage for dental conditions than for 

other types of medical conditions. Employers would be acting at their peril if they 

denied medications or medical treatment for baldness, because that would be a disability-based distinction. This couldn’t be what Congress intended. 

As I also have mentioned, the ADA prohibits pre-offer questions likely to disclose 

an applicant’s disability, and it prohibits those questions of employees unless they 

are specifically related to the job. But if the definition of disability is changed to 

cover all impairments, that would make it flatly illegal to ask applicants about any 

impairments, and to ask employees about any impairments unless specifically related to the job. This means that if an employee comes to work with a broken leg 

and the supervisor says, ‘‘How did you break your leg?’’ the supervisor has engaged 

in illegal conduct under the ADA. It also means that if an employee comes to work 

sneezing and coughing, and his supervisor says, ‘‘Do you have a cold?’’ the supervisor has engaged in illegal conduct under the ADA. This couldn’t be what Congress 

intended. 

An even more basic question is whether the ADA is intended to give someone with 

a sprained ankle the same protections as someone who has paraplegia? Is the ADA 

intended to put someone with the flu in the same category as someone who has 

breast cancer and is undergoing chemotherapy and radiation? Is the ADA intended 

to give someone with a toothache the same rights as someone who has insulin-dependent diabetes? This couldn’t be what Congress intended. 

2. Reversing the Supreme Court Cases on Mitigating Measures 

To me, it is clear that the ADA was never intended to cover every individual with 

any impairment. But, it also is my view that the effects of the Sutton decision have 

excluded individuals whom Congress wanted to protect under the law. For example, 

in one recent Court of Appeals case, a court said that a woman with breast cancer, 

who had undergone chemotherapy and radiation, had suffered severe nausea, and 

had been unable to care for herself or to work, was not considered covered under 

the law.20 In other cases, individuals with insulin-dependent diabetes and epilepsy 

were not considered covered under the law even though the legislative history identified those conditions as impairments which were likely to reach the level of disabilities. 

A fair reading of the ADA’s legislative history supports the notion that the law 

was to be read expansively and that individuals were to be analyzed in their 

unmedicated (i.e., unmitigated) state.21 This approach was grounded in the idea 

that Congress did not want to exclude people because they took steps to alleviate 

their conditions. It also was grounded in the idea that otherwise, individuals would 

be stuck in a Catch 22—they might only have disabilities if they did not take their 

medications, but they might not be qualified if they did not take their medications. 

As I said earlier, the EEOC and most federal courts followed the legislative history. 

The Supreme Court, however, decided not to follow the legislative history. In Sutton v. United Airlines,22 the Supreme Court considered whether the plaintiffs, who 

wore glasses, should be analyzed with or without their glasses in determining 

whether their vision impairments were substantially limiting. The Court concluded 

that individuals should be analyzed with mitigating measures if they used these 

measures. The Supreme Court arguably could have carved out an exception for 

26

glasses (since glasses are so common in our society, and an individual’s condition 

is analyzed as compared to the average person). But they chose instead to say that 

all individuals, regardless of condition, should be analyzed as mitigated.23 After Sutton, many plaintiffs have not been able to proceed with a disability discrimination 

claim because they took medication (even for a serious condition) or used prostheses.24 This result appears to be inconsistent with legislative intent expressed in 

legislative history. 

3. Changing the Burden of Proof 

The ADA Restoration Act also changes the burden of proof in ADA cases, by removing the plaintiff’s responsibility to show that s/he is qualified for the job. Instead, the Act puts the burden of proof on the employer to show that the individual 

is not qualified. This is simply not consistent with other employment discrimination 

laws, which use the McDonnell-Douglas standard, discussed earlier. In addition, 

from a practical perspective, it makes sense to require the plaintiff to prove that 

s/he is qualified, since that individual has the critical evidence on this issue. Moreover, the burden of proof has simply not been a problem under the ADA. 

Therefore, to change this burden would make the ADA burden of proof scheme 

different from the other EEO laws, and would not make sense from an evidentiary 

or practical perspective. 

Conclusion 

It boils down to this: the legislation would likely only ‘‘restore’’ the ADA in the 

sense that it would require courts to analyze an individual’s disability status without regard to medication or mitigating measures. But changing the definition of disability to cover everyone in America would not be ‘‘restoring’’ the ADA. In fact, it 

would dilute the importance of the law for people who have serious conditions, and 

could lead to a deluge of unintended consequences. 

ENDNOTES

1 42 U.S.C. §§ 12101-12213. 

2 42 U.S.C. §§ 12112(d). 

3 42 U.S.C. § 12101(2). 

4 29 U.S.C. § 705(20)(B). 

5 29 C.F.R. § 1630.2(h). For example, in Agnew v. Heat Treating Services of America, 2005 

U.S. App. LEXIS 27884 (6th Cir. 2005)(unpublished), the court noted that a bad back would be 

an impairment. Similarly, in Benoit v. Technical Manufacturing Corp., 331 F.3d 166 (1st Cir. 

2003), the court noted that back and knee strains, caused either by the employee’s improper 

lifting techniques or by his weight gain, were ‘‘impairments.’’ In Arrieta-Colon v. Wal-Mart, Inc., 

2006 U.S. App. LEXIS 826 (1st Cir. 2006), the court did not disturb the jury’s finding that the 

plaintiff’s erectile dysfunction, which required a penile implant (having the side effect of a ‘‘constant semi-erection’’), was an impairment. Likewise, in Sinclair Williams v. Stark, 2001 U.S. 

App. LEXIS 5367 (6th Cir. 2001)(unpublished), the court noted that the plaintiff’s headaches 

were an impairment. In Cella v. Villanova University, 2004 U.S. App. LEXIS 21740 (3d Cir. 

2004)(unpublished), the court held that the plaintiff’s ‘‘tennis elbow’’ was an impairment under 

the ADA. 6 29 C.F.R. § 1630.2(j). See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 

1998)(adopting EEOC’s definition of ‘‘substantially limits’’). Courts compare the individual’s condition to the average person in order to determine whether the condition is serious enough. For 

example, in Collins v. Prudential Investment and Retirement Services, 2005 U.S. App. LEXIS 

148 (3d Cir. 2005)(unpublished), the court found that the employee’s ADHD did not ‘‘substantially limit’’ her ability to think, learn, concentrate, and remember, where she sometimes became 

distracted from her tasks, had trouble placing tasks in priority order, and had trouble showing 

up for events on time. The court noted that ‘‘many people who are not suffering from ADHD/

ADD must regularly cope with’’ such limitations. In Bowen v. Income Producing Management 

of Oklahoma, Inc., 202 F.3d 1282 (10th Cir. 2000), the plaintiff, who suffered a brain injury, 

claimed that he was substantially limited in learning in light of his memory loss, inability to 

concentrate and difficulty performing simple math. The court found that he was not ‘‘substantially limited’’ because he had ‘‘greater skills and abilities than the average person in general.’’ 

Similarly, in Wong v. Regents of the University of California, 410 F.3d 1052 (9th Cir. 2005), 

the court held that the plaintiff was not substantially limited in ‘‘learning’’ or ‘‘reading’’ when 

compared to the general population. Concerning ‘‘learning,’’ the court noted that the plaintiff 

had completed the first two years of medical school with good grades and without any special 

accommodations. Concerning reading, the plaintiff claimed that he read very slowly and did 

much better when he did not have time constraints. The court stated that the plaintiff’s evidence that he was limited (compared to his own reading abilities without time limits) was not 

the relevant issue. Instead, the court held that he had not presented evidence as to the ‘‘appropriate standard’’—comparing himself to ‘‘what is important in the daily life of most people,’’ such 

as his ability to read newspapers, government forms, and street signs. 

On the other hand, many plaintiffs have shown that, compared to the average person, their 

impairments were serious enough to be substantially limiting. For example, in Jenkins v. Cleco 

Power LLC, 487 F.3d 309 (5th Cir. 2007), the court held that where the employee could, with 

intermittent breaks, sit only for up to three hours per day, he was substantially limited in sitVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
27

ting. In Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249 (4th Cir. 2006), the court held 

that the plaintiff, who had kidney failure, was ‘‘substantially limited’’ in eliminating waste because he ‘‘was required to spend at least four hours, three days a week undergoing dialysis in 

order to remove waste from his body.’’ In Battle v. UPS, Inc., 438 F.3d 856 (8th Cir. 2006), the 

court held that the plaintiff may have been substantially limited in performing cognitive functions where there was testimony that he ‘‘thinks and concentrates at a laborious rate,’’ ‘‘has to 

spend significant extra time working on projects,’’ ‘‘cannot think and concentrate about matters 

unrelated to work,’’ and, therefore, cannot make ‘‘household or financial decisions, or discipline[] 

his children, because he does not have the ability to deal with extraneous or unexpected issues, 

conflicts, or demands outside of work.’’ In EEOC v. Sears, 417 F.3d 789 (7th Cir. 2005), the court 

held that where the plaintiff could not ‘‘walk the equivalent of one city block without her right 

leg and feet becoming numb,’’ she could be substantially limited in walking. 7Many courts stated that the effects of medication or prosthetic devices were irrelevant in determining whether someone’s impairment substantially limits a major life activity. See, e.g., Arnold v. United Parcel Service, Inc., 135 F.3d 1089 (1st Cir. 1998)(diabetes); Taylor v. 

Phoenixville School District, 174 F.3d 142 (3rd Cir. 1999)(mental disability)(decision vacated); 

Washington v. HCA Health Services of Texas, 152 F.3d 464 (5th Cir. 1998)(Adult Still Disease); 

Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998)(diabetes); Doane v. City of Omaha, 

115 F.3d 624 (8th Cir. 1997), cert. denied, 118 S. Ct. 693 (1998)(monocular vision); Holihan v. 

Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996), cert. denied, 117 S. Ct. 1349 (1997); Harris v. 

H&W Contracting Co., 102 F.3d 516 (11th Cir. 1996)(Graves disease). 8Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464, 469 (5th Cir. 1998) (emphasis in original). 9 Id. at 469-471. 

10 Id. at 470-71. 11 527 U.S. 471, 119 S.Ct. 2139 (1999). 12 42 U.S.C. 12111(8); 29 C.F.R. § 1630.2(m). 13McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 14For example, in Bates v. UPS, Inc., 2007 U.S. App. LEXIS 29870 (9th Cir. 2007), the court 

noted that the employer must ‘‘put forth evidence establishing’’ which functions are essential 

(because this information ‘‘lies uniquely with the employer’’), and the employee ‘‘bears the ultimate burden of persuading the fact finder that he can perform the job’s essential functions.’’ 

Similarly, in Fenney v. Dakota, Minnesota & Railroad Co., 327 F.3d 707 (8th Cir. 2003), the 

court noted that although ‘‘the plaintiff retains the ultimate burden of proving that he is a qualified individual,’’ the employer must show which functions are essential (if that issue is disputed). In EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007), the court noted that 

the employer has the burden of proving which functions are essential when it disputes the plaintiff’s claim that he is qualified. However, as noted above, the individual bears the burden of 

proving that s/he can perform the essential job functions. For example, in Hammel v. Eau Galle 

Cheese Factory, 407 F.3d 852 (7th Cir. 2005), the court held that the plaintiff has the burden 

of demonstrating that he is capable of performing the essential functions of the job. In this case, 

the court held that the plaintiff could not make this showing, where his performance had been 

deficient in many respects. Similarly, in Breitfelder v. Leis, 2005 U.S. App. LEXIS 21821 (6th 

Cir. 2005)(unpublished), the court held that the plaintiff had the ‘‘burden of showing he could 

perform the essential tasks’’ of the job. 15 42 U.S.C. § 12101(2). 16 29 U.S.C. § 705(20)(B). 17 29 C.F.R. § 1630.2(g). Appendix to Regulations, Compliance Manual Section 902: Definition 

of the Term Disability, March, 1995. 18See Testimony of Chai Feldblum before the Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties of the Committee on the Judiciary, United States House of Representatives 

(10/4/07) at p. 17. 19See EEOC Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-based Distinctions in Employer Provided Health Insurance June, 

1993. 20Garrett v. University of Alabama, 2007 U.S. App. LEXIS 26476 (11th Cir. 2007). 21 H.R. REP. NO. 101-485, pt. 2, at 52 (1990); see also H.R. REP. NO. 101-485, pt. 3, at 28-

29 (1990); S. REP. NO. 101-116 at 23 (1989). 22 527 U.S. 471, 119 S.Ct. 2139 (1999). 23The Sutton case was decided along with Murphy v. United Parcel Service, 527 U.S. 516, 

119 S.Ct. 2133 (1999) and Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162 (1999). 

These three cases are commonly referred to as the Sutton triology, and stand for the proposition 

that individuals should be analyzed as they are, not what they might or could be. For example, 

in Albertson’s, a monocular vision case, the Supreme Court stated that ‘‘people with monocular 

vision ‘ordinarily’ will meet the Act’s definition of disability.’’ However, the Court noted that in 

determining whether an individual’s monocular vision is ‘‘substantially limiting,’’ it will analyze 

the individual’s ability with any behavioral modifications that the individual has undertaken to 

compensate for his impairment. 24For example, in Darwin v. Nicholson, 2007 U.S. App. LEXIS 8153 (11th Cir. 

2007)(unpublished), the court held that the plaintiff’s hearing impairment was not a disability 

because, with his hearing aids, he was not substantially limited in hearing as compared with 

‘‘the general populace.’’ In Knapp v. City of Columbus, 2006 U.S. App. LEXIS 17081 (6th Cir. 

2006)(unpublished), a class action, the court held that the plaintiffs’ ADHD did not substantially 

limit their major life activity of learning where it was admittedly controlled with Ritalin. In 

Greathouse v. Westfall, 2006 U.S. App. LEXIS 27882 (6th Cir. 2006)(unpublished), the court 

held that the plaintiff was not substantially limited in sleeping where he admittedly slept well 

with the use of medication. In Nasser v. City of Columbus, 2004 U.S. App. LEXIS 4737 (6th 

Cir. 2004)(unpublished), the court held that the plaintiff’s back impairment was not a disability 

28

because, in part, ‘‘he relieved his back pain through exercises and medicine.’’ Similarly, in 

Mancini v. Union Pacific Railroad Co., 2004 U.S. App. LEXIS 8213 (9th Cir. 2004)(unpublished), 

the court held that the plaintiff’s epilepsy was not a disability because ‘‘the manifestations of 

his epilepsy, i.e., the seizures, are ‘totally controlled’ through the consistent use of medication.’’ 

In Collins v. Prudential Investment and Retirement Services, 2005 U.S. App. LEXIS 148 (3d 

Cir. 2005)(unpublished), the court noted that the employee’s ADHD might not be a disability 

where the condition was corrected with medication. The court stated that the mitigating measure need not ‘‘constitute a cure.’’ In Manz v. County of Suffolk, 2003 U.S. App. LEXIS 3361 (2d 

Cir. 2003)(unpublished), the court found that the plaintiff’s vision impairments were not a disability because he used very strong glasses which allowed him to see sufficiently well. Likewise, 

in Casey v. Kwik Trip, Inc., 2004 U.S. App. LEXIS 22569 (7th Cir. 2004)(unpublished), the court 

found that the plaintiff was not substantially limited in performing household chores where she 

admitted that she performs these chores by using adaptive measures, such as using both hands 

or certain tools or equipment (such as an electric can opener) to grip and manipulate objects. 

In Carr v. Publix Super Markets, Inc., 2006 U.S. App. LEXIS 2845 (11th Cir. 

2006)(unpublished), the court held that the employee’s impaired arm did not substantially limit 

his major life activities because he had learned to compensate through the use of his other arm. 

Similarly, in Didier v. Schwan Food Co., 465 F.3d 838 (8th Cir. 2006), the court held that despite his hand injury, the employee was not substantially limited in performing manual tasks 

and caring for himself. The court noted that although the employee ‘‘has difficulty with shaving 

and other grooming activities, he learned to do these things left-handed.’’ Interestingly, in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir. 2007), the court held mitigating measures 

includes not only ‘‘measures undertaken with artificial aids, like medications and devices,’’ but 

also ‘‘measures undertaken, whether consciously or not, with the body’s own systems.’’ In this 

case, the court held that the plaintiff’s inability to ‘‘localize sound’’ was mitigated by her own 

‘‘visual localization.’’ In Berry v. T-Mobile USA, Inc., 490 F.3d 1211 (10th Cir. 2007), the court 

held that the plaintiff was not substantially limited in her major life activities since she can 

perform her activities ‘‘given sufficient rest,’’ she can ‘‘walk with the aid of a cane,’’ and she ‘‘can 

treat her symptoms with medication.’’ Using curious legal reasoning, the court also held that 

the plaintiff’s ‘‘family’s assistance with the household chores’’ can be considered in determining 

whether she is substantially limited ‘‘as that is part of daily living in most families.’’

In Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002), the court found that the plaintiff 

did not show that his diabetes, as controlled with insulin, substantially limited his major life 

activities. The court noted that it would not analyze ‘‘what would or could occur if Orr failed 

to treat his diabetes or how his diabetes might develop in the future. In Sinclair Williams v. 

Stark, 2001 U.S. App. LEXIS 5367 (6th Cir. 2001)(unpublished) and Hill v. Kansas City Area 

Transportation Authority, 181 F.3d 891 (8th Cir. 1999), the courts found that the employees’ 

hypertension was not a disability because they controlled the condition with medications such 

that it did not substantially limit their major life activities. In Cotter v. Ajilon Services, Inc., 

287 F.3d 593 (6th Cir. 2002), the court held that the individual’s colitis ‘‘must be viewed in its 

medicated—and thus substantially controlled—state.’’ Likewise, in Hein v. All America Plywood 

Co., 232 F.3d 482 (6th Cir. 2000), the court held that the plaintiff’s hypertension, as medicated, 

was not a disability because he functioned ‘‘normally’’ and had ‘‘no problems ‘whatsoever’ ’’ 

(quoting the plaintiff). In this case, the plaintiff, a truck driver, had asked the court to analyze 

his unmedicated condition because he was fired for refusing to take a driving assignment that 

he claimed would prevent him from getting a refill of his medication. The court concluded that 

he could have obtained the refill if he had been more diligent. In Spades v. City of Walnut 

Ridge, 186 F.3d 897 (8th Cir. 1999), the court held that the employee’s depression was not a 

disability since he conceded that he functioned well with his medications. Similarly, in EEOC 

v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999), the court noted that it did ‘‘not doubt’’ that 

the plaintiff’s condition, ‘‘if left untreated, would affect the full panorama of life activities, and 

indeed would likely result in an untimely death.’’ Nonetheless, the court concluded that ‘‘the predicted effects of the impairment in its untreated state for the purposes of considering whether 

a major life activity has been affected by a physical or mental impairment has, however, been 

foreclosed’’ by the Supreme Court. In Muller v. Costello, 187 F.3d 298 (2d Cir. 1999), the court 

concluded that the plaintiff’s asthma did not substantially limit his ability to breathe, after taking into account his inhalers and other medications. Similarly, in Ivy v. Jones, 192 F.3d 514 

(5th Cir. 1999), the court held that whether the plaintiff’s hearing impairment ‘‘substantially 

limited’’ her hearing should be determined as corrected by her hearing aids. The court noted 

that the plaintiff’s hearing might not be substantially limited in light of the evidence showing 

that her hearing was ‘‘corrected to 92% with one hearing aid and 96% with two hearing aids.’’

Mr. ANDREWS. Mr. Fram, thank you very much for your thoughtful testimony. 

Dr. Burgdorf, we appreciate your contribution to this law from 

the beginning, and we are happy that you are with us today. 

STATEMENT OF ROBERT L. BURGDORF, PROFESSOR OF LAW, 

UNIVERSITY OF THE DISTRICT OF COLUMBIA 

Mr. BURGDORF. Thank you. 

Chairman Andrews, Ranking Member McKeon, members of the 

committee, it is an honor and it is a solemn responsibility for me 

29

to have this opportunity to testify before the committee. I am humbled somewhat by the thought that there are many, many, many 

Mr. McClures in America, many people who were told by the Congress, were told by the president, were told by many of us who 

teach about disability rights law, that henceforth they would be 

protected from discrimination. 

Today, they find out—not today literally—in recent years they 

have found out that isn’t true anymore. Many people who were 

clearly protected by the ADA when it was enacted, in everyone’s 

eyes that spoke at that time, find out when they are told by a 

court, you may have a disability, but it is not a serious enough disability for you to be protected by the Americans with Disabilities 

Act. 

To put it as simply as I can, the courts have made a royal mess 

of the definition of ‘‘disability’’ in the ADA. In trying to figure out 

how to communicate in a simple fashion and not in my typical law 

professor fashion, the complex mess that has been made of the 

Americans with Disabilities Act, I prepared a little chart that I 

have attached as appendix B to my testimony. I have asked that 

copies be made available if you would rather just take a look at it, 

rather than flipping through my testimony. 

Mr. ANDREWS. The members do have copies of that. 

Mr. BURGDORF. Okay, they have that. On the left column is simply what Congress said, either in statutory language or in multiple, 

multiple expostulations in the congressional committee reports. 

The right side is where we have gotten to now. In each of these 

instances, the courts have basically rewritten the definition of ‘‘disability.’’ The things that Congress said, the very language of the 

statute, has been interpreted in a way that now means something 

totally different. 

Some of those things have to do with just narrow or broad construction. Some of them have to do with mitigating measures. But 

they have to do with a lot of other things that the court has taken 

the term ‘‘substantial limitation’’ to a major life activity and turned 

it into a crushing burden, an impossible burden for many people 

with disabilities to meet. Or if they can, they have to do ridiculous 

things like prove what their sex life is like, prove things that have 

nothing to do with the fact that they were denied employment or 

terminated from employment. 

I also put together as another appendix, an appendix A, just a 

list of cases. There are many of these floating around now. It is an 

endless task. This list could be hundreds of cases of particular conditions that people had and went to the courts to say, ‘‘ I have been 

discriminated against,’’ and the court said ‘‘you can’t prove that you 

have a serious enough condition to be protected.’’ That is appendix 

A. 

It is all kinds of conditions—muscular dystrophy, multiple sclerosis, breast cancer, amputation, loss of use of an eye, loss of use 

of an arm. It is just many things that we were all sure were protected. 

In the remainder of my time, I would like to begin to address, 

and I am not sure I can completely do so, Representative McKeon’s 

concerns about unintended consequences. That is the last thing 

that we want to have happen. The Restoration Act is based in large 

30

part upon a report by the National Council on Disability called 

Righting the ADA. It is on the NCD websites and copies have been 

provided to members of Congress. I was lucky enough to get to be 

the principal author for the council of that report. 

The council represents—it is 15 people appointed by President 

Bush, and they really are concerned with what is happening to the 

Americans with Disabilities Act. This report goes at great length 

to describing the problems, but also trying to suggest the solutions. 

Let me just address a couple of things, and if there are questions 

about other unintended consequences, I would be happy to take 

those one. 

The first is that this represents an expansion. Well, it doesn’t 

represent an expansion if one understands what the third prong of 

the ADA said and what Congress and the courts to this time had 

said the third prong is, which is regarded as what having a disability means. I quoted in my testimony from language from this 

committee’s report that says very clearly that if a person is discriminated against because of a covered entities negative attitudes 

toward the person’s impairments, they are treated as having a disability and are covered under the third prong. 

Also, your report and the reports of all the committees that discussed the definition quoted from the leading precedent at the 

time, the Supreme Court’s decision in the Arline case, that such an 

impairment might not diminish a person’s physical or mental abilities, but could nevertheless substantially limit that person’s ability 

to work as a result of the negative reaction of others to that impairment. People could have minor impairments. They could have 

no impairment. 

The last thing I want to say is that—no, there are two things actually. 

Mr. ANDREWS. If I could ask you to quickly summarize so we can 

get to questions. 

Mr. BURGDORF. Okay. I am over time. Okay. I apologize. I would 

love to take on the ‘‘reasonable accommodation’’ issue and also to 

talk about some of what the court had to say. 

[The statement of Mr. Burgdorf follows:]

Prepared Statement of Robert L. Burgdorf, Jr., Professor of Law, 

University of the District of Columbia 

Introduction 

In November 1989, the Committee on Education and Labor, by a vote of 35-0, approved and reported out the Americans with Disabilities Act (ADA). The Committee’s action was a significant step in the process by which Congress and the George 

H.W. Bush Administration realized the momentous and long-needed objective of according people with disabilities protection from discrimination—the right to be 

treated equally and to challenge unfair treatment against them—by enacting the 

ADA. In this legislation, the two elected branches of government made a compact 

with the American people that America would no longer tolerate discrimination on 

the basis of disability, and if people encountered such discrimination they could 

challenge it in court. Unfortunately, the judiciary—the unelected branch—has largely taken away protection of the ADA and access to the courts to enforce it by drastically and aggressively limiting the coverage of the ADA. Today, large numbers of 

people with disabilities around the country find that they no longer have the rights 

the Congress and the President gave them. 

I have been working on a law review article addressing discrimination against 

people with cancer; in doing research for that article, I found considerable statistical 

and anecdotal information documenting serious discrimination directed at people 

who currently have cancer and those who have previously been treated for cancer. 

31

Estimates of the prevalence of such discrimination in the workplace vary all over 

the board, from 5% to 90%, but considering that over 10 million people living in the 

United States currently have cancer or have been treated for cancer, including over 

two million who have been treated for breast cancer, and that about 40% of them 

are of working age, even the most conservative estimates mean that hundreds of 

thousands of Americans with cancer or a history of cancer have been discriminated 

against by their employers. 

Many workers facing such discrimination have sought to assert their rights under 

the ADA. All too often, however, the courts’ restrictive interpretations of the Act’s 

coverage have resulted in judicial rulings that a worker’s cancer is not a disability, 

much to the sad surprise of those who drafted and enacted the legislation. This 

means that hundreds of thousands of people who have had to battle a life-threatening disease and then encountered unfair and unnecessary discrimination may 

have no recourse under a law that was manifestly intended to protect them. Even 

those who do manage to satisfy the stringent criteria for disability can only do so 

by making obviously off-the-point and often embarrassing and painful showings of 

how their sexual activities or ability to perform personal self care or other unrelated 

activities are severely limited. 

The article I am working on focuses on cancer, but the same situation applies to 

many, perhaps most, other types of disabilities. Even a cursory review of the cases 

decided under the ADA reveals a plethora of court decisions in which people with 

conditions everyone thought were covered under the law when it was enacted have 

had their lawsuits thrown out of court based on technical, harshly narrow interpretations of what a ‘‘disability’’ is. To provide a small, but representative, sampling 

of such cases, I have attached a list of decisions in which plaintiffs with significant 

impairments were unable to convince a court that their conditions constituted disabilities under the ADA as Appendix A to this testimony. Statistical studies pretty 

consistently indicate that complainants prevail in fewer than one-out-of-ten ADA 

Title I (employment) complaints. One of the studies found that courts ruled that the 

plaintiff had a disability in only six percent of the cases.1 Ludicrously, employers 

who take drastic steps, such as termination or demotion, against employees because 

of their conditions can successfully contend that the conditions are not serious 

enough to constitute a disability. 

For these reasons, it is both an honor and a solemn responsibility for me to have 

this opportunity to submit comments to the Committee. I am pleased to be a part 

of this panel of distinguished witnesses, including Andrew Imparato whom I have 

worked with and admired for many years. In my 19 years as Professor of Law at 

the University of the District of Columbia, David A. Clarke School of Law, I initially 

taught the School’s Constitutional Law courses, and for many years now have directed a clinical program in legislation—the Legislation Clinic. For over 35 years, 

however, my particular area of legal research and expertise has been the rights of 

people with disabilities. During my career, I have had the good fortune to be presented with some wonderful opportunities to contribute to the advancement of such 

rights. Chief among these was working for the National Council on Disability during 

the Administration of George H.W. Bush to develop the concept of an Americans 

with Disabilities Act (ADA) and then to craft the Council’s original version of the 

ADA. This is the version that Representative Tony Coelho and Senator Lowell 

Weicker had the vision and valor to introduce in the 100th Congress in 1988. 

I subsequently worked with Members of Congress and their staffs, legal experts, 

and representatives of affected industries to revise the ADA bill for introduction in 

the 101st Congress in 1989. After the ADA was enacted in 1990, I had the opportunity to do some scholarly writing, including a hefty legal treatise and several law 

review articles, that discussed the provisions of the ADA and the court decisions 

that started to arise under it. I also had occasion to continue to work with the National Council on Disability (NCD) in monitoring the case law and federal enforcement efforts regarding the ADA. At the Council’s request, I developed a summary 

of the Supreme Court’s ADA decisions and their implications that is posted on the 

NCD website at http://www.ncd.gov/newsroom/publications/2002/supremecourt—

ada.htm. 

During the Administration of George W. Bush, NCD focused on the digression of 

some of the Supreme Court’s decisions from the intent and spirit of the ADA, and 

decided to undertake an in-depth study of the impact of these decisions, consistent 

with NCD’s statutory obligation to ‘‘gather information about the implementation, 

effectiveness, and impact of the Americans with Disabilities Act of 1990.’’ 2 The 

Council commissioned a series of policy documents discussing specific topics raised 

by problematic Supreme Court ADA decisions; 19 such topic papers have been 

issued to date. They are posted on the NCD website under the title Policy Brief SeVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
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ries: Righting the ADA Papers at http://www.ncd.gov/newsroom/publications/

2003/policybrief.htm. 

Based upon information uncovered in the development of these topic papers, NCD 

became convinced that corrective legislative action is called for, and accorded me the 

high honor of asking me to pull together the various strands and issues discussed 

in the individual topic papers and to draft a unified legislative proposal for getting 

the ADA back on track. The result, a report titled Righting the ADA, was issued 

in December of 2004. It provides an analysis of problematic Court rulings, describes 

the resulting impact on people with disabilities, and offers legislative proposals designed to restore the ADA to its original intent. Out of various legislative proposals 

discussed in the report, NCD chose to consolidate its preferred solutions to the problems created by judicial misinterpretation of the ADA into a single draft bill—the 

ADA Restoration Act. 

NCD has sent copies of the Righting the ADA report to Congress, additional copies are available from the National Council, and the report is posted on the NCD 

website at http://www.ncd.gov/newsroom/publications/2004/righting—ada.htm. 

For convenience, however, I am including as the final section of my observations the 

Executive Summary of the Righting the ADA report, which includes a Section-bySection Summary and the text of the Council’s ADA Restoration Act proposal. I will 

only add a caution that the full text of the report contains considerable materials 

clarifying, explaining, and amplifying the impact of the ADA decisions of the Supreme Court and I strongly advise those interested in the proposals to read the full 

rationale that supports them. A considerable portion of my testimony is derived 

more or less directly from the Righting the ADA report, the series of topic papers 

that led up to it, and other NCD reports that I helped develop. 

In my testimony, I will describe some of the background of the enactment of the 

ADA and the positive impacts that it has had. I will then discuss some of the problematic judicial decisions, particularly those of the United States Supreme Court, 

that have inhibited the achievement of some the legislation’s central objectives, including the unexpected restrictive court interpretations of the definition of ‘‘disability’’ in the Act. My testimony will outline how the courts have missed the boat 

as to some of the central premises of the ADA. I will summarize the efforts of the 

National Council on Disability to get the ADA back on track, culminating in its 

Righting the ADA report that contained an ADA Restoration Act proposal. Finally, 

I will examine H.R. 3195, derived in part from the NCD proposal, and discuss the 

extent to which it achieves the goal of undoing the damage done by judicial restrictions on the coverage of the ADA. 

Broad bipartisan support 

President George H.W. Bush called July 26, 1990, ‘‘an incredible day * * * an immensely important day,’’ for on that date he signed into law the Americans with 

Disabilities Act (ADA). In his remarks at the signing ceremony, the President described the Act as an ‘‘historic new civil rights Act, * * * the world’s first comprehensive declaration of equality for people with disabilities.’’ He added that 

‘‘[w]ith today’s signing of the landmark Americans with Disabilities Act, every man, 

woman, and child with a disability can now pass through once-closed doors into a 

bright new era of equality, independence and freedom.’’ He also noted that ‘‘my administration and the Congress have carefully crafted this Act.’’

A rarity about the ADA was that it was an important piece of legislation that almost everyone supported. The votes in Congress to pass the ADA were overwhelmingly in favor of passage. The Senate passed its version of the ADA bill by a vote 

of 76 to 8; the House of Representatives passed its bill 403 to 20. After differences 

were ironed out in conference, the House approved the final version of the bill by 

a vote of 377 to 28, and the Senate followed suit, adopting the final ADA bill by 

the lopsided margin of 91 to 6. Congressional committees that considered the ADA 

were equally united in their backing of the legislation. Two of the five committees—

the Senate Labor and Human Resources Committee and the House Committee on 

Education and Labor—adopted ADA bills unanimously. The Subcommittee on Civil 

and Constitutional Rights favorably reported the bill by a recorded vote of 7-1, and 

the House Judiciary Committee followed suit by a recorded vote of 32-3. None of 

the formal up-or-down committee votes on reporting out the ADA, nor any of the 

floor votes on passage of the legislation, had less than a 90 percent majority in favor 

of the ADA bills. 

Such overwhelming approval of a measure—with at least 9 out of 10 voting for 

it—obviously can occur only if it has both Republican and Democratic support. The 

ADA originated, as Senator Robert Dole, the Senate minority leader emphasized, 

‘‘with an initiative of the National Council on Disability, an independent federal 

body composed of 15 members appointed by President Reagan and charged with reVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
33

viewing all laws, programs, and policies of the Federal Government affecting individuals with disabilities.’’ Proposed by Reagan appointees, initially sponsored by a 

Republican in the Senate (Senator Lowell Weicker) and a Democrat in the House 

of Representatives (Representative Tony Coelho), passed by a Democrat-controlled 

Senate and House of Representatives, and supported and signed by President 

George H.W. Bush, the ADA was a model of bipartisanship. 

Before the ADA was reintroduced in the 101st Congress, ADA advocates in Congress determined that, to pass an effective and enforceable law, they needed the 

support of the administration and members of Congress from both major political 

parties. As Congressman Coelho would later report, ‘‘If it had become a Democratic 

bill, [the ADA] would have lost. * * * It had to be bipartisan.’’ As the ADA passed 

the Senate, Senator Dole called it ‘‘a good example of bipartisanship in action.’’ Likewise, President George H.W. Bush credited the success of the ADA to the fact that 

members of Congress, ‘‘on both sides of the political aisle’’ agreed to ‘‘put politics 

aside’’ to ‘‘do something decent, something right.’’ He credited the ADA’s passage to 

‘‘a coalition in the finest spirit. A joining of Democrats and Republicans. Of the Legislative and the Executive Branches. Of federal and state agencies. Of public officials and private citizens. Of people with disabilities and without.’’

Members of both political parties participated in cooperative meetings to craft 

compromise provisions and revise problematic language in the bills. Republican Representative Steve Bartlett described meetings with the leading House advocate for 

the ADA, Democrat Steny Hoyer, as ‘‘the most productive and satisfying legislative 

negotiations that I had ever been involved with.’’

In addition to congressional dialogue and bargaining, a key factor in obtaining bipartisan backing and ultimately passing the ADA was the unwavering support for 

the legislation by President George H.W. Bush and his administration. While he 

was Vice President, Mr. Bush had pledged that he would promote a civil rights act 

for people with disabilities. Two days before his inauguration as President, Mr. 

Bush declared, ‘‘I said during the campaign that disabled people have been excluded 

for far too long from the mainstream of American life. * * * One step that I have 

discussed will be action on the Americans with Disabilities Act in order, in simple 

fairness, to provide the disabled with the same rights afforded others, afforded other 

minorities.’’ Early in the Senate hearings on the ADA, Senator Tom Harkin, a Democrat, made a remarkable statement crediting President George H.W. Bush’s public 

remarks in favor of rights for people with disabilities: 

[W]e have had strong, strong statements made by President Bush—no President 

of the United States, Republican or Democrat, has ever said the things about disabled Americans that George Bush has said. No President, including the President 

who was in a wheelchair, Franklin Roosevelt. 

Senator Harkin concluded that ‘‘this bodes well’’ and meant that ‘‘we can work 

together with the administration, [on] both sides of the aisle * * *’’ on the ADA. 

Attorney General Dick Thornburgh formally announced the Bush administration’s 

support for the ADA during Senate hearings on the legislation. He declared, ‘‘[w]e 

at the Justice Department wholeheartedly share [the ADA’s] goals and commit ourselves, along with the President and the rest of his administration to a bipartisan 

effort to enact comprehensive legislation attacking discrimination in employment, 

public services, transportation, public accommodations, and telecommunications.’’ 

He added, in regard to the ADA bill, that ‘‘[o]ne of its most impressive strengths 

is its comprehensive character’’ that was consistent with President George H.W. 

Bush’s commitment to ensuring people with disabilities’ ‘‘full participation in and 

access to all aspects of society.’’ After Administration and Senate advocates ironed 

out differences on specific provisions, the Administration’s express endorsement of 

the legislation led to a unanimous Senate Committee vote to report the bill out of 

committee, and to more than 60 Senators signing on as cosponsors. It also set the 

stage for favorable House action and final passage of the ADA. 

As the ADA passed the Senate, Senator Dole praised President George H.W. Bush 

for his leadership on the legislation, and declared that ‘‘[w]e would not be here today 

without the support of the President.’’ The senator credited a list of administration 

officials, including Chief of Staff John Sununu and Attorney General Dick 

Thornburgh, whose efforts contributed to the passage of the ADA. He also appended 

to his remarks a New York Times opinion-editorial piece about the ADA written by 

James S. Brady, who had been President Reagan’s Press Secretary. Mr. Brady 

wrote: 

As a Republican and a fiscal conservative, I am proud that this bill was developed 

by 15 Republicans appointed to the National Council on Disability by President 

Reagan. Many years ago, a Republican President, Dwight D. Eisenhower, urged that 

people with disabilities become taxpayers and consumers instead of being dependent 

upon costly federal benefits. The [ADA] grows out of that conservative philosophy. 

34

NCD has observed: 

More than any other single player, the role of President Bush cannot be overestimated. The ADA would have made little headway were it not for the early and consistent support from the nation’s highest office. * * * The president’s support 

brought people to the table to work out a bipartisan compromise bill that could obtain the support of the business community as well as that of the disability community.3

Acclaim for the ADA came from many other sources. Senator Dole called the ADA 

‘‘landmark legislation’’ that would ‘‘bring quality to the lives of millions of Americans who have not had quality in the past.’’ Senator Hatch declared the ADA was 

‘‘historic legislation’’ whose passage was ‘‘a major achievement’’ demonstrating that 

‘‘in this great country of freedom, * * * we will go to the farthest lengths to make 

sure that everyone has equality and that everyone has a chance in this society.’’ The 

executive director of the Leadership Conference on Civil Rights described the ADA 

as ‘‘the most comprehensive civil rights measure in the past two-and-a-half decades.’’ Senator Edward M. Kennedy termed the legislation a ‘‘bill of rights’’ and ‘‘an 

emancipation proclamation’’ for people with disabilities. The late Justin Dart, who 

occupied disability policy positions in the Reagan, Bush, and Clinton administrations, called the ADA ‘‘a landmark commandment of fundamental human morality.’’

Backing by subsequent Presidents 

In 2000, President Bill Clinton proclaimed July as ‘‘The Spirit of the ADA Month’’ 

and declared: 

The enactment of the Americans with Disabilities Act 10 years ago this month 

signaled a transformation in our Nation’s public policies toward people with disabilities. America is now a dramatically different—and better—country because of the 

ADA. 

In addition to citing past accomplishments and pending initiatives his administration was pursuing to further the implementation of the ADA, President Clinton 

added, ‘‘Vice President Gore and I are proud to join in the celebration and to renew 

our own pledge to help advance the cause of disability rights.’’ For his part, Vice 

President Al Gore observed, ‘‘We know we can’t just pass a few laws and change 

attitudes overnight. But day by day, person by person, we can make a difference. 

Together, let’s not just complete the work of the ADA—let’s say to the whole world: 

this is one country that knows we don’t have a person to waste, and we’re moving 

into the next century—together.’’ 4

Bipartisan support and presidential commitment to the ADA have continued. 

President George W. Bush endorsed the Act and, in February 2001, issued his ‘‘New 

Freedom Initiative,’’ committing his administration to ensuring the rights and inclusion of people with disabilities in all aspects of American life. On June 18, 2001, 

President Bush issued Executive Order No. 13217, declaring the commitment of the 

United States to community-based alternatives for individuals with disabilities. On 

the twelfth anniversary of the signing of the ADA, July 26, 2002, the President proclaimed the ADA to be ‘‘one of the most compassionate and successful civil rights 

laws in American history.’’ 5 The White House also declared that ‘‘[t]he administration is committed to the full enforcement of the Americans with Disabilities Act.’’ 

President Bush asserted a clear continuity between his commitment to the ADA and 

that of his father: 

[W]hen my father signed the ADA into law in 1990, he said, ‘‘We must not and 

will not rest until every man and woman with a dream has the means to achieve 

it.’’ Today we renew that commitment, and we continue to work for an America 

where individuals are celebrated for their abilities, not judged by their disabilities. 

Will of the people 

In enacting the ADA and in seeking its vigorous enforcement, the elected 

branches of the Federal Government—the Congress and the President—have carried 

out the will of the American people. A large majority of the public reports that it 

favors the ADA. A 2002 Harris Poll found that, of the 77 percent of Americans who 

said they were aware of the ADA, an overwhelming percentage (93 percent) reported 

that they ‘‘approve of and support it.’’ The ADA is supported by most of the business 

sector. A Harris Poll of business executives in 1995, for example, showed that 90 

percent of the executives surveyed said that they supported the ADA. 

In the face of negative media reports on the ADA (often misleading and sometimes flatly inaccurate), most Americans are still highly favorably disposed to the 

Act. They have had experience with the realities of the ADA in their communities 

and workplaces, and have seen how people have benefited from it. They have noticed people with visible disabilities at stores, malls, theaters, stadiums, and museums. They have seen the ramps, accessible bathrooms, disabled parking spaces, and 

35

other accessibility features that the ADA has engendered. They encounter people 

who use wheelchairs now able to go to department stores, fast food places, and government offices. They know that the son of their neighbors is now living comfortably 

in an apartment in the neighborhood with appropriate support services instead of 

in an institutional setting. They are aware that sign language interpreters now are 

routinely present at their county council meetings. In these and countless other 

ways, they have seen the ADA in action, and they approve. 

Impact of the ADA 

In a variety of ways, the ADA has lived up to the high hopes that accompanied 

its passage. The provisions of the ADA that address architectural, transportation, 

and communication accessibility have changed the face of American society in numerous concrete ways. A vast number of buildings and other structures have been 

affected by provisions of the ADA that make it illegal to design or construct any 

new place of public accommodation or other commercial facility without making it 

readily accessible to and usable by people with disabilities, or to alter such a facility 

without incorporating accessibility features. The ADA’s mass transit provisions 

ended decades of disagreements and controversy regarding many of the issues that 

determined exactly what is required of public transportation systems to avoid discriminating on the basis of disability. The ADA contains detailed provisions describing requirements for operators of bus, rail, and other public transportation systems, 

and intercity and commuter rail systems. Although implementation has been far 

from perfect and ADA provisions do not answer all the questions, much progress in 

transportation accessibility has been made. The ADA’s employment provisions have 

dramatically affected hiring practices by barring invasive preemployment questionnaires and disability inquiries and the misuse of preemployment physical information. These provisions also have made job accommodations for workers with disabilities more common than they were before the ADA was enacted. The ADA’s telecommunications provisions have resulted in the establishment of a nationwide system of relay services, which permit the use of telephone services by those with hearing or speech impairments, and a closed captioning requirement for the verbal content of all federally funded television public service announcements. 

Other provisions of Title II of the ADA (covering state and local governments) and 

Title III (covering public accommodations) have eliminated many discriminatory 

practices by private businesses and government agencies. The ADA has had a particularly strong impact in promoting the development of community residential, 

treatment, and care services in lieu of unnecessarily segregated large state institutions and nursing homes. The Act provided the impetus for President George W. 

Bush’s ‘‘New Freedom Initiative,’’ issued in February 2001, committing his administration to assuring the rights and inclusion of people with disabilities in all aspects 

of American life; and for Executive Order No. 13217, issued on June 18, 2001, declaring the commitment of the United States to community-based alternatives for 

people with disabilities. 

At the ADA signing ceremony, the first President Bush declared that other countries, including Sweden, Japan, the Soviet Union, and each of the 12 member nations of the European Economic Community, had announced their desire to enact 

similar legislation. In the years since its enactment, numerous other countries have 

been inspired by the ADA to seek legislation in their own jurisdictions to prohibit 

discrimination on the basis of disability. These countries have looked to the ADA, 

if not as a model, at least as a touchstone in crafting their own legislative proposals. 

In 1988, while the original ADA bills were pending before Congress, the Presidential Commission on the Human Immunodeficiency Virus (HIV) Epidemic endorsed the legislation and recommended that the ADA should serve as a vehicle for 

protecting from discrimination people with HIV infection. The ADA has proved to 

be the principal civil rights law protecting people with HIV from the sometimes 

egregious discriminatory actions directed at them. 

In a broader sense, the ADA has, as the Council has observed in a report issued 

in 2000, ‘‘begun to transform the social fabric of our nation:’’

It has brought the principle of disability civil rights into the mainstream of public 

policy. The law, coupled with the disability rights movement that produced a climate where such legislation could be enacted, has impacted fundamentally the way 

Americans perceive disability. The placement of disability discrimination on a par 

with race or gender discrimination exposed the common experiences of prejudice and 

segregation and provided clear rationale for the elimination of disability discrimination in this country. The ADA has become a symbol, internationally, of the promise 

of human and civil rights, and a blueprint for policy development in other countries. 

It has changed permanently the architectural and telecommunications landscape of 

the United States. It has created increased recognition and understanding of the 

36

manner in which the physical and social environment can pose discriminatory barriers to people with disabilities. It is a vehicle through which people with disabilities 

have made their political influence felt, and it continues to be a unifying focus for 

the disability rights movement.6

This is not to ignore the fact that there are huge gaps in enforcement of the 

ADA’s requirements or that some covered entities have taken an I-won’t-do-anything-until-I’m-sued attitude toward the obligations imposed by the law. Indeed, the 

Promises to Keep report, from which the preceding quotations were taken, described 

a variety of problems and weaknesses in federal enforcement of the ADA and presented recommendations for remedying such deficiencies. 

Numerous people with disabilities, however, have declared that the ADA has 

played an important role in improving their lives. In 1995, NCD issued a report titled Voices of Freedom: America Speaks Out on the ADA, in which it presented a 

large number of statements by individuals with disabilities talking about the impact 

of the ADA. The following is a tiny sampling of the thousands of statements NCD 

received: 

The ADA is fantastic. I can go out and participate. The ADA makes me feel like 

I’m one of the gang. (Sandra Brent, Arkansas) 

Even though we had the Rehab Act of 1973, it took the ADA to make real change. 

The ADA has given me hope, independence, and dignity. ( Yadi Mark, Louisiana) 

Because of the ADA, I have more of the opportunities that other people have. Now 

I feel like a participant in life, not a spectator. (Brenda Henry, Kansas) 

A successful person with a disability was once thought of as unusual. Now successful people with disabilities are the rule. It’s the ADA that has opened the door. 

(Donna Smith-Whitty, Mississippi) 7

The report presented statements by people with disabilities about their experiences with the ADA in various aspects of their lives, including access to the physical 

environment, access to employment opportunities, communication mobility, and self 

image. The report concluded that, * * * the actual research data and the experiences of people with disabilities, of their family members, of businesses, and of public servants, [demonstrates] that this relatively new law has begun to move us rapidly toward a society in which all Americans can live, attend school, obtain employment, be a part of a family, and be a part of a community in spite of the presence 

of a disability. What is needed now is a renewed commitment to the goals of the 

Act (which were crafted under unprecedented bipartisan efforts), sufficient resources 

to support further education and training concerning the ADA, and effective enforcement.8

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

In the 12 years since President George H.W. Bush signed the ADA into law, more 

people with disabilities are participating fully in our society than ever before. As 

we mark this important anniversary, we celebrate the positive effect this landmark 

legislation has had upon our Nation, and we recognize the important influence it 

has had in improving employment opportunities, government services, public accommodations, transportation, and telecommunications for those with disabilities. 

Today, Americans with disabilities enjoy greatly improved access to countless facets of life; but more needs to be done. We must continue to build on the important 

foundations established by the ADA. Too many Americans with disabilities remain 

isolated, dependent, and deprived of the tools they need to enjoy all that our Nation 

has to offer.9

Judicial resistance 

In light of the overwhelming endorsement of the ADA by Congress in enacting it, 

by the Presidents in office at and since its enactment, and by the majority of the 

general public, it is surprising and disappointing that the judiciary all too often has 

given the Act the cold shoulder. Problematic judicial interpretations have blunted 

the Act’s impact in significant ways. The National Council on Disability, numerous 

legal commentators, and large numbers of people with disabilities have become increasingly concerned about certain interpretations and limitations placed on the 

ADA in decisions of the U.S. Supreme Court. 

This is not to suggest that all the rulings of the high court on the ADA have been 

negative. Among favorable decisions, the U.S. Supreme Court has (1) upheld the 

ADA’s integration requirement and applied it to prohibit unnecessary segregation 

of people receiving residential services from the states; (2) held the ADA applicable 

to protect prisoners in state penal systems; (3) held that the ADA prohibits discrimination by a dentist against a person with HIV infection; (4) ruled that the ADA required the PGA to allow a golfer with a mobility impairment to use a golf cart in 

tournament play as a ‘‘reasonable modification;’’ and ruled that the ADA protects 

the rights of people with disabilities to have access to the courts. But while not all 

37

of the Court’s ADA decisions are objectionable, those that are have had a serious 

negative impact. They have placed severe restrictions on the class of persons protected by the ADA, have narrowed the remedies available to complainants who successfully prove violations of the Act, have expanded the defenses available to employers, and have even called into question the very legality of some parts of the 

Act. NCD’s policy paper, The Impact of the Supreme Court’s ADA Decisions on the 

Rights of Persons with Disabilities, explores the effect such decisions have had on 

individuals with disabilities. Paper No. 7 of NCD’s Policy Brief Series: Righting the 

ADA Papers can be found at http://www.ncd.gov/newsroom/publications/2003/

policybrief.htm. 

Media coverage of the Court’s ADA decisions has made matters worse. While such 

coverage has not been uniformly negative, a significant portion of it has been misleading, presenting the Act in a highly unfavorable light and placing a negative 

‘‘spin’’ on the ADA, the court decisions interpreting it, and its impact on American 

society. NCD’s extensive and detailed policy paper, Negative Media Portrayals of the 

ADA, discusses prevalent media-fed myths about the ADA. Paper No. 5 of NCD’s 

Policy Brief Series: Righting the ADA Papers can be found at http://www.ncd.gov/

newsroom/publications/2003/policybrief.htm. 

Inhibitive court decisions combined with harmful media perspectives have caused 

the ADA to be the object of frequent misunderstanding, confusion, and even derision. The detrimental pronouncements of the courts and negative impressions of the 

ADA fostered by media mischaracterizations have fed on one another and have generated increasing misunderstandings of the Act’s underlying purposes and vision, 

frustrated some of its central aims, and narrowed the scope and degree of its influence. 

Problematic interpretations of the ADA 

A. Surprising Problems with the Definition of Disability 

When Congress passed the ADA and President George H.W. Bush signed it into 

law, hardly anyone expected trouble in the courts with the definition of disability. 

Congress played it safe by adopting in the ADA a definition of disability that was 

the same as the definition of ‘‘handicap’’ under the Rehabilitation Act. That definition was enacted in 1974 and clarified in regulations issued under Section 504 of 

the Rehabilitation Act. Because the definition was a broad and relatively 

uncontroversial one, defendants seldom challenged plaintiffs’ claims of having a disability.10 In 1984, a federal district court noted that, after 10 years’ experience with 

the Rehabilitation Act definition, only one court found a Section 504 plaintiff not 

to have a ‘‘handicap.’’ 11

In 1987, the U.S. Supreme Court made it abundantly clear that the definition of 

‘‘handicap’’ under Section 504 was very broad. In School Board of Nassau County 

v. Arline, the Court took an expansive and nontechnical view of the definition. The 

Court found that Ms. Arline’s history of hospitalization for infectious tuberculosis 

was ‘‘more than sufficient’’ to establish that she had ‘‘a record of’’ a disability under 

Section 504 of the Rehabilitation Act. The Court made this ruling even though her 

discharge from her job was not because of her hospitalization. The Court displayed 

a lenient interpretation of what a plaintiff needed to show to invoke the protection 

of the statute. It noted that, in establishing the new definition of disability in 1974, 

Congress had expanded the definition ‘‘so as to preclude discrimination against ‘[a] 

person who has a record of, or is regarded as having, an impairment [but who] may 

at present have no actual incapacity at all.’ ’’

The Court declared that the ‘‘basic purpose of Section 504’’ was to ensure that individuals ‘‘are not denied jobs or other benefits because of the prejudiced attitudes 

or the ignorance of others’’ or ‘‘reflexive reactions to actual or perceived [disabilities]’’ and that the legislative history of the definition of disability ‘‘demonstrates 

that Congress was as concerned about the effect of an impairment on others as it 

was about its effect on the individual.’’ The Court elaborated as follows: 

Congress extended coverage * * * to those individuals who are simply ‘‘regarded 

as having’’ a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection ‘‘a person with some 

kind of visible physical impairment which in fact does not substantially limit that 

person’s functioning.’’ Such an impairment might not diminish a person’s physical 

or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment. 

When Congress was considering the ADA, the Supreme Court’s decision in School 

Board of Nassau County v. Arline was the leading legal precedent on the definition 

of disability. The Arline ruling was expressly relied on in several ADA committee 

reports discussing the definition of disability, including the report of the House Judiciary Committee, which quoted the exact language of the Court as set out above.12

38

This was the legal background when Congress adopted the essentially identical 

definition of disability in the ADA. To further ensure that the definition of disability 

and other provisions of the ADA would not receive restrictive interpretations, Congress included in the ADA a provision requiring that ‘‘nothing’’ in the ADA was to 

‘‘be construed to apply a lesser standard’’ than is applied under the relevant sections 

of the Rehabilitation Act, including Section 504, and the regulations promulgating 

them. In his remarks at the ADA signing ceremony, President George H.W. Bush 

pointed with pride to the ADA’s ‘‘piggybacking’’ on Rehabilitation Act language: 

The administration worked closely with the Congress to ensure that, wherever 

possible, existing language and standards from the Rehabilitation Act were incorporated into the ADA. The Rehabilitation Act standards are already familiar to 

large segments of the private sector that are either federal contractors or recipients 

of federal funds. Because the Rehabilitation Act was enacted 17 years ago, there is 

already an extensive body of law interpreting the requirements of that Act. 

Accordingly, at the time of the ADA’s enactment, it seemed clear that most ADA 

plaintiffs would not find it particularly difficult to establish that they had a disability. NCD issued two policy papers that discuss the care with which the ADA definition of disability was selected and the breadth of that definition. A Carefully Constructed Law and Broad or Narrow Construction of the ADA, papers No. 2 and No. 

4, respectively, of NCD’s Policy Brief Series: Righting the ADA Papers, can be found 

at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 

For some time after the ADA was signed into law, the pattern of broad and inclusive interpretation of the definition of disability, established under Section 504, continued under the ADA. In 1996, a federal district court declared that ‘‘it is the rare 

case when the matter of whether an individual has a disability is even disputed.’’ 13

As some lower courts, however, began to take restrictive views of the concept of disability, defendants took note, and disability began to be contested in more and more 

cases. 

Beginning with its decision in Sutton v. United Airlines in 1999, the U.S. Supreme Court started to turn its back on the broad, relaxed interpretation of disability endorsed by the Court in the Arline decision. By the time of the Toyota 

Motor Manufacturing, Kentucky, Inc. v. Williams decision in 2002, the Court was 

espousing the view that the definition should be ‘‘interpreted strictly to create a demanding standard for qualifying as disabled.’’ This stance is directly contrary to 

what the Congress and the President intended when they enacted the ADA. 

The result of the Court’s harsh and restrictive approach to defining disability 

places difficult, technical, and sometimes insurmountable evidentiary burdens on 

people who have experienced discrimination. The focus of many time-consuming and 

expensive legal battles is on the characteristics of the person subjected to discrimination rather than on the alleged discriminatory treatment meted out by the accused party. The ADA was intended to regulate the conduct of employers and other 

covered entities, and to induce them to end discrimination. To the extent that these 

parties can divert the focus to a microscopic dissection of the complaining party, 

central objectives of the law are being frustrated. 

Other governments and judicial forums have rejected the Supreme Court’s restrictive interpretation of disability. Thus, courts in the individual states 14 and in other 

countries 15 have embraced more inclusive interpretations of who has a disability 

under nondiscrimination laws. And legislatures in the states 16 and in other countries 17 deliberately have rejected the narrow approach under U.S. law as enunciated 

in the Supreme Court’s decisions. 

B. Specific Problems with the Interpretation of Disability 

In its Righting the ADA report, the National Council on Disability described nine 

issues to which the Supreme Court’s narrow approach to the definition of disability 

in the ADA had led it to deviate from the legislative intent with harmful consequences. These issues were: 

(1) Consideration of Mitigating Measures in Determining Disability, 

(2) Substantial Limitation of a Major Life Activity, 

(3) Employment as a Major Life Activity, 

(4) The ‘‘Class or Broad Range of Jobs’’ Standard, 

(5) ‘‘Regarded As’’ Having a Disability, 

(6) Validity of and Deference to Be Accorded Federal Regulations Implementing 

the ADA’s Definition of Disability, 

(7) Duration Limitation on What Constitutes a Disability, 

(8) Per Se Disabilities, and 

(9) Restrictive Interpretation of the Definition of Disability to Create a Demanding Standard. 

39

In regard to each of these issues, the report describes ‘‘What the Supreme Court 

Did,’’ analyzes the ‘‘Significance of the Court’s Action,’’ and gives specific ‘‘Examples 

of Impact’’ of the rulings. To provide a graphic summary of the ways that the court 

decisions have deviated from the intentions expressed by Congress when it enacted 

the ADA, I have prepared and attached as Appendix B to this testimony a chart 

contrasting ‘‘What Congress Said’’ with ‘‘What the Courts Are Now Saying.’’ Similarly, the Righting the ADA report contains a section titled ‘‘Principles and Assumptions Regarding the Definition of Disability When the ADA Was Enacted That Have 

Been Disregarded or Contradicted by the Supreme Court’’ which presents 11 important ways in which the Court’s ADA definitions decisions deviate from expectations 

in place when the ADA was negotiated debated and enacted. For the sake of brevity, 

that information is not reiterated here, but the discussion of one of the issues—mitigating measures—that follows hopefully exemplifies the kinds of serious problems 

the Court’s approach to the definition has caused. 

Before the Supreme Court upset the applecart, all the relevant authorities were 

nearly unanimous in the view that mitigating measures should not be considered 

in deciding whether a person has a disability under the ADA. Even before the ADA 

was enacted, the committee reports on the pending legislation declared clearly that 

mitigating measures should not be factored in. The three ADA Committee Reports 

that addressed the issue all concurred that mitigating measures are not to be taken 

into account when determining whether an individual has a disability. This Committee declared unequivocally that ‘‘[w]hether a person has a disability should be 

assessed without regard to the availability of mitigating measures * * *.’’ 18 The 

House Committee on the Judiciary likewise declared that ‘‘[t]he impairment should 

be assessed without considering whether mitigating measures * * * would result in 

a less-than-substantial limitation.’’ 19 To illustrate the application of this approach, 

the Committee discussed the examples of a person with epilepsy whose condition is 

mitigated by medication and of a person with a hearing impairment whose hearing 

loss is corrected by the use of a hearing aid. In the Committee’s view, these individuals would be covered by the ADA. 

In a sharp break from the legislative history of the ADA, the position of the executive agencies responsible for enforcing the ADA, and the prior rulings of eight of the 

nine federal courts of appeal that had addressed the issue, the Supreme Court decided, in its rulings in the Sutton v. United Airlines, Inc., Murphy v. United Parcel 

Service, and Albertson’s, Inc. v. Kirkingburg cases, that mitigating measures should 

be considered in determining whether an individual has a disability under the ADA. 

The Supreme Court’s position on mitigating measures ignores the rationale that led 

courts, regulatory agencies, and Congress to take a contrary position—that unless 

you disregard mitigating measures in determining eligibility for ADA protection, you 

shield much discrimination on the basis of disability from effective challenge. 

The result of the Court’s rulings on mitigating measures turns the ADA’s definition of disability into an instrument for screening out large groups of individuals 

with disabilities from the coverage of the Act, and thereby insulating from challenge 

many instances of the pervasive unfair and unnecessary discrimination that the law 

sought to prohibit. To the extent that mitigating measures are successful in managing an individual’s condition, the Supreme Court’s stance on mitigating measures 

deprives the individual of the right to maintain an ADA action to challenge acts of 

disability discrimination she or he has experienced, because such a person is not eligible for the ADA’s protection. This means an employer or other covered entity may 

discriminate with impunity against such individuals in various flagrant and covert 

ways. NCD issued a policy paper examining the function and types of mitigating 

measures, discussing the near consensus in the law prior to the Supreme Court’s 

taking a contrary position, and describing the repercussions of the Court’s position. 

The Role of Mitigating Measures in the Narrowing of the ADA’s Coverage, paper 

No. 11 of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at 

http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 

Taking the condition of epilepsy to illustrate, before the Supreme Court’s rulings 

in Sutton, Murphy, and Kirkingburg, ‘‘a person [with] epilepsy would receive nearly 

automatic ADA protection,’’ 20 consistent with statements in the ADA legislative history and regulatory guidance. The ADA regulatory commentary of the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) specifically declared that an individual with epilepsy would remain within the coverage 

of the ADA even if the effects of the condition were controlled by medication. 

The situation changed dramatically with the Supreme Court’s mitigating measures decisions. To the extent that a covered entity can successfully demonstrate 

(after extensive, intrusive discovery into the details of the person’s condition) that 

an individual’s epilepsy is effectively controlled by medication, the individual cannot 

challenge the discriminatory actions of the covered entity. This is true even if the 

40

employer or other covered entity has an express policy against the hiring of people 

with epilepsy; puts up signs that say, ‘‘epileptics not welcome here;’’ inaccurately assumes that all persons with epilepsy are inherently unsafe; or has the irrational belief that epilepsy is contagious. The unfairness or irrationality of the covered entity’s 

actions and motivations, including stereotypes, fears, assumptions, and other forms 

of prejudice, cannot be challenged by a person whose condition is mitigated. The end 

result is that it is a rare plaintiff who is in a position to challenge even the most 

egregious and outrageous discrimination involving a condition that can be mitigated. 

One study, by the Epilepsy Legal Defense Fund, found that, of 36 cases in which 

courts had ruled on the issue since the Supreme Court issued its decision in Sutton 

v. United Airlines, 32 had decided that epilepsy was not a disability. 

Epilepsy is an illustrative example, but the same principles apply to diabetes, various psychiatric disabilities, hypertension, arthritis, and numerous other conditions 

that, for some individuals, can be controlled by medication. Moreover, the same 

problems arise with conditions for which techniques and devices other than medication provide an avenue for mitigation. Thus, a company that discriminates against 

people who use hearing aids will be insulated from challenge by people for whom 

the hearing aids are effective in offsetting, to some degree, diminution of functional 

ability to hear. Other mitigating measures, including prosthetic devices, can raise 

the same issues—to the extent that they are successful, they may lead to an argument that the person does not have a disability, even if she or he is discriminated 

against precisely because of the underlying condition or even the use of the mitigating measure itself. Obviously, this is directly contrary to the stated intentions 

of this Committee and the Congress as a whole. 

C. Misconstruing a Central Premise Underlying the ADA 

Courts that have espoused restrictive interpretations of the definition of disability 

under the ADA have truly missed the boat on disability. They have exhibited longheld, antiquated notions about disability and about the role of government in addressing disability. If courts think of people with disabilities as not capable of working, for example, anyone who is able to work must not be disabled. Similarly, access 

barriers were historically viewed by many people as being barriers because of an 

individual’s disability, as opposed to the problem being the barrier itself. When a 

person with a mobility impairment, for example, could not cross a street with curbs, 

the person’s disability was considered to be the reason, as opposed to recognizing 

that the design of the curb was deficient because it was done with only certain types 

of people in mind, when it could just as easily have been designed to be usable by 

all. The ADA embodies a social concept of discrimination that views many limitations resulting from actual or perceived impairments as flowing, not from limitations of the individual, but, rather, from the existence of unnecessary barriers to full 

participation in society and its institutions. The social model is at variance with the 

medical model of disability that centers on assessments of the degree of a person’s 

functional limitation.21

I once wrote that ‘‘[d]isability nondiscrimination laws, such as the Americans with 

Disabilities Act, and the disability rights movement that spawned them have, at 

their core, a central premise both simple and profound * * * that people denominated as ‘disabled’ are just people—not different in any critical way from other people.’’ 22 To elaborate a bit on that idea, I wrote a section titled ‘‘People with Disabilities ‘‘People with Disabilities as Regular Joes and Janes’’ that I shall take the liberty of quoting from here: 

Over thirty years ago, Jacobus tenBroek characterized people with disabilities as 

‘‘normal people caught at a physical and social disadvantage.’’ In his remark, Professor tenBroek captured a truth that is both the guiding star and essential foundation * * *—that individuals with disabilities are just people, not essentially different from other people. Though this proposition is relatively simple to state, its 

acceptance is the single most universal aspiration of most individuals with disabilities, a central tenet of the Disability Rights Movement, and a sine qua non of real 

equality for people with disabilities. 

This helps to explain why terminology in regard to disabilities has been a sensitive issue. People with disabilities have come to recognize that processes by which 

they are assigned labels have reinforced the perception that they are substantially 

different from others. In response, they have strongly insisted that ‘‘we are ‘people 

first,’ ’’ and have demanded that their common humanity be acknowledged rather 

than their differentness magnified. It also explains why many individuals with disabilities resist attempts to characterize them as ‘‘special’’ or their daily accomplishments as ‘‘inspirational’’ or ‘‘courageous.’’ At best, such characterizations mark the 

individual so labeled as extraordinary and different from the rest of the population 

and one whose accomplishments and success are a surprise; at worst, they suggest 

41

that the speaker is saying ‘‘Being who you are is so bad that I could not face it—

I would just give up,’’ ‘‘Your limitations are so severe that I don’t see how you accomplish anything,’’ or even ‘‘I would rather be dead than to live with your impairments.’’ People with disabilities do not view their going about the tasks and trials 

involved in ordinary activities and trying to have accomplishments and success as 

something atypical and heroic. They would prefer to be seen for what they are, as 

ordinary individuals pursuing the same types of goals—love, success, sexual fulfillment, contributing to society, material comforts, etc.—as other folks. 

The ‘‘integration’’ that is required under the ADA and Sections 501, 503, and 504, 

and the ‘‘full participation’’ that is the ultimate objective of federal laws relating to 

disabilities dictate that individuals with disabilities not be unnecessarily differentiated from the rest of society. To achieve this end, analysis under these laws should 

not focus on differentiating characteristics of the individual alleging discrimination, 

but instead on the practices and operations of covered entities to determine whether 

or not they are in fact discriminatory, when examined in light of latent flexibility 

in structuring and modifying tasks, programs, facilities, and opportunities. Legal 

standards imposed under these laws should serve to eliminate practices, policies, 

barriers, and other mechanisms that discriminate on the basis of disability, not to 

eliminate as many people as possible from the protection provided in these laws. In 

short, these laws seek to promote real equality, not to protect a special group.23

Despite common misconceptions that there are two distinct groups in society—

those with disabilities and those without—and that it is possible to draw sharp distinctions between these two groups, people actually vary across a whole spectrum 

of infinitely small gradations of ability with regard to each individual functional 

skill. And the importance of particular functional skills varies immensely according 

to the situation, and can be greatly affected by the availability or unavailability of 

accommodations and alternative methods of doing things. This human ‘‘spectrum of 

abilities’’ was recognized in a 1983 report by the U.S. Commission on Civil Rights—

Accommodating the Spectrum of Individual Abilities. The Commission noted that, 

while the popular view is that people with disabilities are impaired in ways that 

make them sharply distinguishable from nondisabled people, instead of two separate 

and distinct classes, there are in fact ‘‘spectrums of physical and mental abilities 

that range from superlative to minimal or nonfunctional.’’ 24 In some of its publications, the National Council on Disability has explained and elaborated on the spectrum of abilities concept.25

In addition, authorities on disability are generally in agreement that the concept 

of disability entails a social judgment; people come to have a disability when they 

are viewed and treated as having one by other people. As the U.S. Commission on 

Civil Rights put it in Accommodating the Spectrum of Individual Abilities, ‘‘people 

are made different—that is socially differentiated—by the process of being seen and 

treated as different in a system of social practices that crystallizes distinctions 

* * *.’’ 26 Thus, the experience of disability is closely linked to the concept of discrimination. Individuals may encounter discrimination on the basis of disability 

whether or not they previously thought of themselves as having a disability, and 

whether or not they meet foreordained, medically oriented criteria. To achieve its 

purposes of eliminating discrimination and achieving integration, the ADA should 

reduce the unnecessary differentiation of people because of actual, perceived, or 

former physical and mental characteristics. It emphatically should not force people 

to demonstrate their differentness as a prerequisite to receiving protection under 

the Act. 

The ADA is based on a social or civil rights model (sometimes referred to as a 

socio-political model), in contrast to the traditional ‘‘medical model.’’ It views the 

limitations that arise from disabilities as largely the result of prejudice and discrimination rather than as purely the inevitable result of deficits in the individual. 

Sociology Professor Richard K. Scotch, a disability policy author, has written: 

In the socio-political model, disability is viewed not as a physical or mental impairment, but as a social construction shaped by environmental factors, including 

physical characteristics built into the environment, cultural attitudes and social behaviors, and the institutionalized rules, procedures, and practices of private entities 

and public organizations. All of these, in turn, reflect overly narrow assumptions 

about what constitutes the normal range of human functioning.27

Law Professor Linda Hamilton Krieger has written that the ADA’s concept of disability views it ‘‘not only in terms of the internal attributes of the arguably disabled 

individual, but also in terms of external attributes of the attitudinal environment 

in which that person must function. ‘Disability,’ under this conception, resides as 

much in the attitudes of society as in the characteristics of the disabled individual.’’ 28 She elaborated on the ADA’s adoption of the social model as follows: 

42

[T]he drafters of the ADA sought to transform the institution of disability by locating responsibility for disablement not only in a disabled person’s impairment, but 

also in ‘‘disabling’’ physical or structural environments. Under such a construction, 

the concept of disability takes on new social meaning. It is not merely a container 

holding tragedy, or occasion for pity, charity, or exemption from the ordinary obligations attending membership in society. The concept of disability now also, or to a 

certain extent instead, contains rights to and societal responsibility for making enabling environmental adaptations. The ADA was in this way crafted to replace the 

old impairment model of disability with a socio-political approach. 

The National Council on Disability has discussed the necessity for applying the 

social model of disability under the ADA.29 In the topic paper accompanying its initial proposal of an Americans with Disabilities Act, NCD expressly rejected the 

‘‘medical model’’ and the need for people to demonstrate the severity of their limitations as a precondition to being protected from discrimination.30 In its Righting the 

ADA report, NCD included a section titled ‘‘Incorporation of a Social Model of Discrimination.’’ The Council declared: 

The ADA embodies a social concept of discrimination that views many limitations 

resulting from actual or perceived disabilities as flowing, not from limitations of the 

individual, but, rather, from the existence of unnecessary barriers to full participation in society and its institutions. This is in contrast to the medical model of disability that centers on assessments of the degree of a person’s functional limitation.31

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

D. Other Kinds of Problems Resulting from Supreme Court Rulings 

Apart from problems with the definition of disability, the Righting the ADA report 

discusses in detail several other kinds of problems that have resulting from ill-advised ADA rulings of the Supreme Court. These include the following: 

1. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of 

Health and Human Resources, the Supreme Court rejected the ‘‘catalyst theory’’ 

that most lower courts had applied in determining the availability of attorney’s fees 

and litigation costs to plaintiffs in cases under the ADA and other civil rights statutes, and under other federal laws that authorize such payments to the ‘‘prevailing 

party.’’

2. In Barnes v. Gorman, the Supreme Court ruled that punitive damages may not 

be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, 

under Section 202 of the ADA, or under Section 504 of the Rehabilitation Act. 

3. In Chevron U.S.A. Inc. v. Echazabal, the Supreme Court upheld as permissible 

under the ADA the EEOC regulatory provision that allows employers to refuse to 

hire applicants because their performance on the job would endanger their health 

because of a disability, despite the fact that, in the language of the ADA, Congress 

recognized a ‘‘direct-threat’’ defense only for dangers posed to other workers. 

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

5. In U.S. Airways, Inc. v. Barnett, the Supreme Court ruled that the ADA ordinarily does not require the assignment of an employee with a disability, as a reasonable accommodation, to a particular position to which another employee is entitled 

under an employer’s established seniority system, but that it might in special circumstances. The Court declared that ‘‘to show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not ‘reasonable.’ ’’

The implications of some of these rulings are a bit technical and a fuller explanation is not provided here. They are explained in some detail in Righting the ADA 

and in the specific topic papers mentioned in the report. As those sources explain, 

the negative impact of such decisions on the protection of people with disabilities 

under the ADA is significant and disturbing. 

Getting the ADA back on track: remedial legislation 

A. Generally 

Based on its analysis of what has happened in the last 17 years since the ADA 

was enacted the National Council on Disability reached the following conclusion: 

Incisive and forceful legislative action is needed to address the dramatic narrowing and weakening of the protection provided by the ADA, resulting from the 

Supreme Court’s decisions, and to restore civil rights protections. Millions of Americans experience discrimination based on ignorance, prejudice, fears, myths, misconceptions, and stereotypes that many in American society continue to associate 

43

with certain impairments, diagnoses, or characteristics. To revive the scope and degree of protection that the ADA was supposed to provide—to address ‘‘pervasive’’ 

discrimination in a ‘‘comprehensive’’ manner, as the Act declares—and to put ADA 

protections on a more equal footing with other civil rights protections under federal 

law, it is necessary to remove conceptual and interpretational baggage that has been 

attached to various elements of the ADA. Any legislative proposal should address, 

in some way, each of the problems listed in Section II of this report [Righting the 

ADA] that the Court’s decisions have created. 

For convenience I am attaching as Appendix C to this testimony the Executive 

Summary of NCD’s Righting the ADA report. It contains a legislative proposal for 

getting the ADA back on course—an ADA Restoration Act bill—with an explanatory 

introduction and a section-by-section summary. I believe it represents the best 

thinking to date on what ought to be done to ‘‘restore’’ the ADA to its original congressionally intended course. NCD’s proposal addresses a broader array of issues 

than are dealt with in H.R. 3195, but the amendments proposed in H.R. 3195 to 

restore the protections and scope of coverage of the ADA are largely based on and 

generally quite consistent with the Righting the ADA proposals. 

B. Restoring the Scope of ADA Protection—H.R. 3195

The courts have made a royal mess of the three-prong definition of disability in 

the ADA. This has occurred in spite of very clear and explicit language and guidance Congress provided in the Act and its legislative history. Baffled individuals 

with all sorts of physical and mental impairments find that they are not allowed 

to challenge discrimination against them, based on legal rationales that are tortured, hypertechnical, and contrary to common sense. 

Employers are able to say ‘‘Your condition is so problematic that I can’t hire you,’’ 

or ‘‘so problematic that I must terminate you,’’ and then turn around and argue in 

court, successfully, that ‘‘your condition isn’t serious enough to constitute a disability.’’ The focus of proceedings in most ADA cases is not on the alleged discrimination the plaintiff experienced. Instead the focus is on an invasive and often embarrassing, detailed dissection of the plaintiff’s condition, limitations, and medical 

background. Instead of concentrating on employment or other particular activity in 

which the discrimination is alleged to have occurred, the proceedings and arguments 

often are about other activities, such as sexual activities, reproduction, personal 

care, and many other areas of life far afield from the alleged discrimination. Plaintiffs are required to demonstrate whether, in discharging them, employers were 

thinking they were unfit for a broad class or range of jobs—a matter that is purely 

hypothetical and concerns the mental state of the employer—a notoriously difficult 

thing to prove. Astoundingly, the Supreme Court has even questioned whether employment is a major life activity at all. 

H.R. 3195 addresses the most serious distortions that have resulted from a constricted interpretation by the courts of the ADA definition of disability. It does so 

in a manner that is straightforward and effective in clearing up the detrimental analytical muddle of the current judicial interpretations. Consistent with informed 

public policy, the bill returns the primary focus away from misplaced efforts to draw 

pedantic, absurd distinctions based on judicial assessments of degree of limitation 

and returns it to identifying and eliminating discrimination on the basis of disability. To repair the tangle of interpretations that have resulted from the Supreme 

Court’s announced proclivity for seeing to it that the ADA’s coverage is ‘‘interpreted 

strictly to create a demanding standard for qualifying as disabled,’’ 33 the bill replaces the concept of ‘‘substantial limitation,’’ that has been so thoroughly and irreparably compromised and misapplied by the courts, with the straightforward concept 

of physical or mental impairment, a concept that has a clear and settled definition. 

A person who has been subjected to an adverse employment action (or disadvantaged in regard to other types of services or benefits of non-employment programs 

and entities covered by the ADA) because of a physical or mental impairment will 

be protected by the ADA. 

At first glance, one might question whether this alteration to the statutory language will engender an unwarranted enlargement of ADA coverage—expansion 

rather than restoration. A more informed understanding of the scope of protection 

Congress intended to establish in 1990 leads to the opposite conclusion. The third 

prong of the ADA definition, which includes people who are ‘‘regarded as’’ having 

an impairment, was understood at the time of enactment to include anyone who was 

disadvantaged by a covered entity on the basis of disability. It is well-documented, 

if all too often ignored by the courts that, as understood by Congress when it passed 

the ADA, the law was supposed to protect any person who was discriminated 

against because of a physical or mental impairment. In its Committee Report accompanying its reporting out of the ADA, this Committee said: 

44

The third prong of the definition includes an individual who is regarded as having 

a covered impairment. This third prong includes an individual who has physical or 

mental impairment that does not substantially limit a major life activity, but that 

is treated by a covered entity as constituting such a limitation. The prong also includes an individual who has a physical or mental impairment that substantially 

limits a major activity only as a result of the attitudes of others toward such impairment or has no physical or mental impairment but is treated by a covered entity 

as having such an impairment.34

The Senate ADA Report contained identical language.35

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

A person who is excluded from any basic life activity, or is otherwise discriminated against, because of a covered entity’s negative attitudes toward that person’s 

impairment is treated as having a disability. Thus, for example, if an employer refuses to hire someone because of a fear of the ‘‘negative reactions’’ of others to the 

individual, or because of the employer’s perception that the applicant has an impairment which prevents that person from working, that person is covered under the 

third prong of the definition of disability.36

The Report of this Committee and those of the Senate and the House Judiciary 

Committee all discussed, as guiding precedent, the decision of the Supreme Court 

in the Arline case, which, as described above, took an expansive view of the third 

prong of the definition, and all three quoted the following language from the Arline 

decision: 

Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of other to the impairment.37

Clearly, Congress understood that Section 504 did, and intended that the ADA 

would, protect a person with an impairment, even if it did not substantially limit 

a major life activity. 

Contrary to the Supreme Court’s view discussed above, Congress intended that 

adverse employment action by a single employer in regard to a single job would be 

sufficient to satisfy the third prong of the ADA definition. The Senate Committee 

Report pointedly cited as examples of individuals included within the ‘‘regarded as’’ 

concept ‘‘people who are rejected for a particular job for which they apply because 

of findings of a back abnormality in an x-ray, notwithstanding the absence of any 

symptoms, or people who are rejected for a particular job solely because they wear 

hearing aids * * *.’’ 38 The report added: 

A person who is excluded from any activity covered under this Act or is otherwise 

discriminated against because of a covered entity’s negative attitudes towards disability is being treated as having a disability which affects a major life activity. For 

example, if a public accommodation, such as a restaurant, refused entry to a person 

with cerebral palsy because of that person’s physical appearance, that person would 

be covered under the third prong of the definition. Similarly, if an employer refuses 

to hire someone because of a fear of the (negative reactions( of others to the individual, or because of the employer’s perception that the applicant had a disability 

which prevented that person from working, that person would be covered under the 

third prong.39

Not only is there no suggestion of a need to show that the individual is limited 

in connection with other jobs or participation in other programs, but in support of 

the quoted language the report cited Thornhill v. Marsh and Doe v. Centinela Hospital—two decisions which broadly interpret the third prong, consistent with the 

Arline decision.40 This Committee expressed similar sentiments and included the 

same case citations in its report.41

The House Committee on the Judiciary used language that differs somewhat from 

that in the other reports but to similar effect. It noted that a person who is rejected 

from a job because of the myths, fears, and stereotypes associated with disabilities 

would be covered under this third test, whether or not the employer’s perception 

was shared by others in the field and whether or not the person’s physical or mental 

condition would be considered a disability under the first or second part of the definition.42

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

In the employment context, if a person is disqualified on the basis of an actual 

or perceived physical or mental condition, and the employer can articulate no legitimate job-related reason for the rejection, a perceived concern about employing persons with disabilities could be inferred and the plaintiff would qualify for coverage 

under the (regarded as( test.43

Thus, all of the Congressional Committees that commented on the ADA definition 

of disability understood it to include persons with any degree or type of physical or 

mental impairment if they were discriminated against because of it; or even if they 

45

had no impairment at all, if the covered entity believed they did and subjected them 

to discrimination for that reason. Accordingly, H.R. 3195 merely restores, not expands, the coverage of the ADA by protecting persons who are discriminated against 

because of a physical or mental impairment regardless of severity. 

Another possible objection to H.R. 3195 is that it might make people with very 

minor impairments eligible for ‘‘reasonable accommodations,’’ to the serious detriment of employers. This concern reflects a misunderstanding about the entitlement to reasonable accommodations under the ADA. The ADA does not entitle everyone protected from discrimination under the Act to receive a reasonable accommodation, nor does the Act provide a right to covered individuals to any accommodations they may desire. 

Reasonable accommodations are required under the act for a reason—to overcome 

the effects of impairment that will prevent performance of essential job functions 

or result in denial of job benefits. The ADA regulations issued by the EEOC make 

this abundantly clear; they declare that the term ‘‘reasonable accommodation’’ 

means: Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that 

enable a qualified individual with a disability to perform the essential functions of 

that position.’’ 44

The EEOC’s Interpretive Guidance explains that ([t]he reasonable accommodation 

requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated( and 

adds that those barriers may consist of physical or structural obstacles, rigid schedules, inflexible procedures, or undue limitations in the ways tasks are accomplished.45

The nature and function of reasonable accommodation mean that a person cannot 

qualify for one unless he or she can show that a physical or mental impairment prevents the performance of an essential job function. Unless the impairment has such 

an effect, there is no reason for an accommodation. Accordingly, fears that people 

having very minor impairments will be able to demand accommodations willy-nilly 

is totally unfounded. Minor impairments will seldom, if ever, prevent performance 

of essential employment functions. 

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

and rendering accommodation is largely within the auspices of employers. 

The EEOC’s Interpretive Guidance and the ADA committee reports specified a 

process that covered entities should follow when determining what type of accommodation ought to be provided in a particular situation. The reports of this Committee 

and that of the Senate Labor and Human Resources declared in identical language 

that: 

The Committee believes that the reasonable accommodation requirement is best 

understood as a process in which barriers to a particular individual’s equal employment opportunity are removed. The accommodation process focuses on the needs of 

a particular individual in relation to problems in performance of a particular job because of a physical or mental impairment. A problem-solving approach should be 

used to identify the particular tasks or aspects of the work environment that limit 

performance and to identify possible accommodations that will result in a meaningful equal opportunity for the individual with a disability.46

If initial discussions between the employer and the employee or applicant do not 

readily disclose what accommodation is called for, the EEOC recommends that an 

employer undertake a four-step process: 

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

functions; 

(2) Consult with the individual with disability to ascertain the precise job-related 

limitations imposed by the individual’s disability and how those limitations could be 

overcome with a reasonable accommodation; 

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

(4) Consider the preference of the individual to be accommodated and select and 

implement the accommodation that is most appropriate for both the employee and 

the employer.47

The first step, analyzing the job, involves examining the actual job duties and determining the true purpose or object of the job and identifying the essential functions that an accommodation must enable the individual with a disability to perform.48 The ADA committee reports refer to this step as ‘‘identifying and distinVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
46

guishing between essential and nonessential job tasks and aspects of the work environment of the relevant position(s).’’ 49 The second step, ascertaining the limitations 

imposed by the disability and how a reasonable accommodation might overcome 

them, seeks to identify the precise barrier to the employment opportunity that needs 

to be addressed by an accommodation.50

The third step, identifying possible accommodations and assessing their effectiveness, begins with suggestions of accommodations by the individual needing accommodation and may also involve consultations with vocational rehabilitation personnel, the EEOC, or disability constituent organizations.51 Assessing the effectiveness of various possible accommodations includes considering the likely success of 

each potential accommodation in assisting the individual to perform the essential 

functions of the position, the reliability of the accommodation, and whether it can 

be provided in a timely manner.52

The fourth step is to select and implement an appropriate accommodation. Where 

more than one accommodation will enable the individual with a disability to perform the essential functions of the position, his or her preference should be given 

primary consideration, but the employer retains the ultimate discretion to choose 

between effective accommodations and may choose the one that is less expensive or 

easier to provide.53

At each of these steps, employers are in the driver’s seat, although they are definitely required to consult with the individual seeking the accommodation. Employers will certainly be able to say no to unjustified or excessive requested accommodations. And ultimately the employer can, if necessary, invoke the ADA’s defense 

against having to provide accommodations that result in an undue hardship. Thus, 

in the highly unlikely hypothetical situation in which a person could demonstrate 

that a minor impairment would somehow prevent performance of an essential job 

function, the employer would be fully within its rights to select a realistic and proportionate accommodation. 

H.R. 3195 will not cause a problem of accommodations for minor impairments. 

Nor will it enlarge the ADA’s coverage beyond that intended when the law was enacted. The bill’s approach to restoring the definition of disability is well-designed to 

undo the damage wrought by the courts’ constricted interpretation of ADA protection. I hope that this Committee will advance this legislation promptly to achieve 

what the Committee intended when it voted 35-0 to report out the ADA in 1989. 

Thank you very much for this opportunity to provide input to the Committee on 

this highly important subject. 

APPENDIX A.—SAMPLING OF CASES IN WHICH PLAINTIFFS HAVING SIGNIFICANT IMPAIRMENTS WERE UNSUCCESSFUL IN DEMONSTRATING THAT THEY WERE PROTECTED BY

THE ADA

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

9, 2007). 

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

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

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

Bipolar disorder: Johnson v. North Carolina Dep’t of Health and Human Servs., 

(M.D.N.C. 2006). 

Breast cancer (and accompanying mastectomy, chemotherapy, and radiation therapy): Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 183 (D.N.H. 

2002); Turner v. Sullivan University Systems, Inc., 420 F. Supp. 2d 773, 777 

(W.D. Ky. 2006). 

Breast cancer (and accompanying mastectomy and chemotherapy): Schaller v. 

Donelson Air Conditioning Co., 2005 WL 1868769 (M.D. Tenn. Aug. 4, 2005). 

Cirrhosis of the liver caused by chronic Hepatitis B: Furnish v. SVI Sys. Inc., 270 

F.3d 445 (7th Cir. 2001). 

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

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

Epilepsy: Equal Employment Opportunity Comm’n v. Sara Lee Corp., 237 F.3d 349 

(4th Cir. 2001); Todd v. Academy Corp., 57 F. Supp. 2d 448, 453-54 (S.D. Tex. 

1999). 

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

Cir. 2007). 

Heart disease and diabetes: Epstein v. Kalvin-Miller International, Inc., 100 F. 

Supp. 2d 222, 223 (S.D.N.Y. 2000). 

HIV Infection: Cruz Carrillo v. AMR Eagle, Inc., 148 F.Supp.2d 142, 146 

(D.P.R.2001). 

47

Impaired hearing/use of hearing aid: Eckhaus v. Consolidated Rail, Corp., No. Civ. 

00-5748 (WGB), 2003 WL 23205042, at *5 (D.N.J. Dec. 24, 2003). 

Loss of most vision in one eye: Foore v. City of Richmond, 6 Fed. Appx. 148, 150 

(4th Cir. 2001). 

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

‘‘Mental retardation’’—intellectual and developmental disabilities: Littleton v. WalMart Stores, Inc., No. 05-12770, 2007 WL 1379986, at *4 (11th Cir. May 11, 

2007) 

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

Cir.1999). 

Muscular dystrophy: McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL 

21766539 (5th Cir. 2003). 

Post-Traumatic Stress Disorder: Rohan v. Networks Presentations LLC, 375 F.3d 

266, 277 (4th Cir.2004). 

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

Ala. 1999).

APPENDIX B 

CONGRESS SAID THE COURTS NOW SAY 

‘‘COMPREHENSIVE PROHIBITION OF DISCRIMINATION ON THE 

BASIS OF DISABILITY’’ 

ELEMENTS OF DEFINITION ‘‘NEED TO BE INTERPRETED 

STRICTLY TO CREATE A DEMANDING STANDARD FOR 

QUALIFYING AS ‘DISABLED’ ’’

‘‘DISABILITY SHOULD BE ASSESSED WITHOUT REGARD TO THE 

AVAILABILITY OF MITIGATING MEASURES’’

MITIGATING MEASURES SHOULD BE CONSIDERED IN DETERMINING EXISTENCE OF A DISABILITY

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

DENIAL OF A PARTICULAR JOB IS SUFFICIENT TO CONSTITUTE 

A SUBSTANTIAL LIMITATION IN EMPLOYMENT 

THERE MUST BE DENIAL OF A BROAD RANGE OR CLASS OF 

JOBS TO CONSTITUTE A SUBSTANTIAL LIMITATION

FEDERAL AGENCIES ARE DIRECTED TO ISSUE REGULATIONS 

FOR CARRYING OUT ADA 

REGULATIONS INTERPRETING THE DEFINITION OF DISABILITY 

ARE OF DOUBTFUL VALIDITY

‘‘MAJOR LIFE ACTIVITIES OF SUCH INDIVIDUAL’’ ‘‘ACTIVITIES THAT ARE OF CENTRAL IMPORTANCE IN MOST 

PEOPLE’S DAILY LIVES’’

‘‘SUBSTANTIALLY LIMITS’’ ‘‘PREVENTS OR SEVERELY RESTRICTS’’

‘‘REGARDED AS’’ PRONG APPLIES TO PERSON DISCRIMINATED 

AGAINST BASED ON DISABILITY EVEN IF PERSON DOES NOT 

HAVE SUBSTANTIALLY LIMITING CONDITION 

‘‘REGARDED AS’’ PRONG SUBJECT TO FIRST PRONG LIMITATIONS, SUCH AS CONSIDERATION OF MITIGATING MEASURES AND REQUIREMENT THAT PERSON BE UNABLE TO 

PERFORM BROAD RANGE OR CLASS OF JOBS

‘‘REGARDED AS’’ PRONG APPLIES TO PERSON TREATED AS 

HAVING A DISABILITY 

‘‘REGARDED AS’’ PRONG APPLIES ONLY WHEN EMPLOYER 

SHOWN TO ‘‘ENTERTAIN MISPERCEPTIONS ABOUT THE INDIVIDUAL’’ AND BELIEVES THE PERSON HAS A SUBSTANTIALLY LIMITING IMPAIRMENT

NO MENTION OF DURATION-OF-IMPAIRMENT LIMITATION ‘‘IMPAIRMENT’S IMPACT MUST ALSO BE PERMANENT OR 

LONG TERM’’ TO CONSTITUTE A DISABILITY

HIV, PARAPLEGIA, DEAFNESS, HARD OF HEARING/HEARING 

LOSS, LUNG DISEASE, BLINDNESS, MENTAL RETARDATION, 

ALCOHOLISM ARE DISABILITIES 

MAYBE SO, MAYBE NOT 

APPENDIX C

The following is from the righting the ADA Report of the National Council on Disability (December 2004), PP. 11-27: 

Executive Summary 

Many Americans with disabilities feel that a series of negative court decisions is 

reducing their status to that of ‘‘second-class citizens,’’ a status that the Americans 

with Disabilities Act (ADA) was supposed to remedy forever. In this report, the National Council on Disability (NCD), which first proposed the enactment of an ADA 

48

and developed the initial legislation, offers legislative proposals designed to get the 

ADA back on track. Like a boat that has been blown off course or tipped over on 

its side, the ADA needs to be ‘‘righted’’ so that it can accomplish the lofty and laudable objectives that led Congress to enact it. 

Since President George H.W. Bush signed the ADA into law in 1990, the Act has 

had a substantial impact. The Act has addressed and prohibited many forms of discrimination on the basis of disability, although implementation has been far from 

universal and much still remains to be done. In its role in interpreting the ADA, 

the judiciary has produced mixed results. Led by the U.S. Supreme Court, the 

courts have made some admirable rulings, giving effect to various provisions of the 

Act. Unfortunately, however, many ADA court decisions have not been so positive. 

This report addresses a series of Supreme Court decisions in which the Court has 

been out of step with the congressional, executive, and public consensus in support 

of ADA objectives, and has taken restrictive and antagonistic approaches toward the 

ADA, resulting in the diminished civil rights of people with disabilities. In response 

to the Court’s damaging decisions, this report seeks to document and explain the 

problems they create and advance legislative proposals to reverse their impact. NCD 

has developed more extensive and detailed analyses of these issues in a series of 

papers published under the title Policy Brief Series: Righting the ADA Papers. The 

papers can be found at http://www.ncd.gov/newsroom/publications/2003/

policybrief.htm. 

In an effort to return the ADA to its original course, this report offers a series 

of legislative proposals designed to do the following: (1) reinstate the scope of protection the Act affords, (2) restore certain previously available remedies to successful 

ADA claimants, and (3) repudiate or curtail certain inappropriate and harmful defenses that have been grafted onto the carefully crafted standards of the ADA. 

As this report was going to press, the Supreme Court issued its decision in the 

case of Tennessee v. Lane, in which the Court upheld provisions of Title II of the 

ADA, as applied, to create a right of access to the courts for individuals with disabilities. The Lane ruling certainly merits additional study, and NCD expects to issue 

future analyses of the decision and the questions it leaves open. This report does 

not attempt to address such issues. 

The body of the report at times discusses alternative legislative approaches to 

some of the problems it addresses. NCD has chosen, however, to consolidate its preferred solutions to the various problems into a single draft bill. The following represent the specific legislative proposals made by NCD at this time for ‘‘righting the 

ADA,’’ first described in a Section-by-Section Summary and then presented as a proposed ‘‘ADA Restoration Act of 2004.’’

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

Section 1—Short Title 

This section provides that the law may be cited as The ADA Restoration Act of 

2004 and conveys the essence of the proposal’s thrust, which is not to proffer some 

new, different rendition of the ADA but, rather, to return the Act to the track that 

Congress understood it would follow when it enacted the statute in 1990. The title 

echoes that of the Civil Rights Restoration Act of 1987, which was passed to respond 

to and undo the implications of a series of decisions by the Supreme Court, culminating in Grove City College v. Bell, which had taken a restrictive view of the 

phrase ‘‘program or activity’’ in defining the coverage of various civil rights laws applicable to recipients of federal financial assistance. As with that law, The ADA Restoration Act would ‘‘restore’’ the law to its original congressionally intended course. 

Section 2—Findings and Purposes 

Subsection (a) presents congressional findings explaining the reasons that an ADA 

Restoration Act is needed. It describes how certain decisions of the Supreme Court 

have weakened the ADA by narrowing the broad scope of protection afforded in the 

Act, eliminating or narrowing remedies available under the Act, and recognizing 

some unnecessary defenses that are inconsistent with the Act’s objectives. 

Subsection (b) provides a statement of the overall purposes of the ADA Restoration Act, centering on reinstating original congressional intent by restoring the 

broad scope of protection and the remedies available under the ADA, and negating 

certain inappropriate defenses that Court decisions have recognized. 

Section 3—Amendments to the ADA of 1990

This section, and its various subsections, includes the substantive body of the 

ADA Restoration Act, which amends specific provisions of the ADA. 

Subsection (a) revises references in the ADA to discrimination ‘‘against an individual with a disability’’ to refer instead to discrimination ‘‘on the basis of disVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
49

ability.’’ This change recognizes the social conception of disability and rejects the notion of a rigidly restrictive protected class. 

Subsection (b) revises certain of the congressional findings in the ADA. Paragraph 

(1) revises the finding in the ADA that provided a rough estimate of the number 

of people having actual disabilities, a figure that a majority of the Supreme Court 

misinterpreted as evidence that Congress intended the coverage of the Act to be narrowly circumscribed. The revised finding stresses that normal human variation occurs across a broad spectrum of human abilities and limitations, and makes it clear 

that all Americans are potentially susceptible to discrimination on the basis of disability, whether they actually have physical or mental impairments and regardless 

of the degree of any such impairment. Paragraph (2) revises the wording of the ADA 

finding regarding the history of purposeful unequal treatment suffered by people 

with certain types or categories of disabilities. Paragraphs (3) and (4) add a new 

finding that incorporates a social concept of disability and discrimination on the 

basis of disability. 

Subsection (c) revises some of the definitions used in the ADA. Paragraph (1) 

amends the definition of the term ‘‘disability’’ to clarify that it shall not be construed 

narrowly and legalistically by drawing fine technical distinctions based on relative 

differences in degrees of impairment, instead of focusing on how the person is perceived and treated. This approach rejects the medical model of disability that categorizes people because of their supposedly intrinsic limitations, without reference 

to social context and socially imposed barriers, and to individual factors such as 

compensatory techniques and personal strengths, goals, and motivation. The second 

part, headed ‘‘Construction,’’ invalidates the Supreme Court’s rulings in Sutton v. 

United Airlines, Murphy v. United Parcel Service, and Albertson’s, Inc. v. 

Kirkingburg by clarifying that mitigating measures, such as medications, assistive 

devices, and compensatory mechanisms shall not be considered in determining 

whether an individual has a disability. 

Paragraphs (2) and (3) add definitions of the terms ‘‘physical or mental impairment,’’ ‘‘perceived physical or mental impairment,’’ and ‘‘record of physical or mental 

impairment’’ to the statutory language. These definitions are derived from current 

ADA regulations, and were recommended for inclusion in NCD’s original 1988 

version of the ADA. 

Subsection (d) clarifies that the ADA’s ‘‘direct-threat’’ defense applies to customers, clients, passersby, and other people who may be put at risk by workplace 

activities, but, contrary to the Court’s ruling in Chevron U.S.A. Inc. v. Echazabal, 

not to the worker with a disability. The latter clarification returns the scope of the 

direct-threat defense to the precise dimensions in which it was established in the 

express language of the ADA as enacted. 

Subsection (e) restores the carefully crafted standard of undue hardship as the 

sole criterion for determining the reasonableness of an otherwise effective accommodation. 

Subsection (f) clarifies that ADA employment rights of individuals with disabilities, including the opportunity to be reassigned to a vacant position as a reasonable 

accommodation, are not to take a backseat to rights of other employees under a seniority system or collective bargaining agreement. In addition, covered entities are 

directed to incorporate recognition of ADA rights in future collective bargaining 

agreements. 

Subsection (g) adds new subsections to the Remedies provision of Title II of the 

ADA. The first restores the possibility of recovering punitive damages available to 

ADA plaintiffs who prove they have been subjected to intentional discrimination, an 

opportunity that was foreclosed by the Supreme Court in Barnes v. Gorman. The 

second added subsection underscores the fact that other remedies, but not punitive 

damages, are available to ADA plaintiffs who prove that they have been subjected 

to ‘‘disparate impact’’ discrimination. The third new subsection establishes that intentionally refusing to comply with certain requirements of Title II of the ADA and 

the Rehabilitation Act, including accessibility requirements, auxiliary aids requirements, communication access requirements, and the prohibition on blanket exclusions in eligibility criteria and qualification standards, constitutes engaging in unlawful intentional discrimination. 

Subsection (h) provides that the provisions of the Act are to be liberally construed 

to advance its remedial purposes. To counter the Court’s ruling that eligibility for 

ADA protection should be ‘‘interpreted strictly to create a demanding standard for 

qualifying’’ (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams), another provision declares that the elements of the definition of ‘‘disability’’ are to be interpreted broadly. In addition, the subsection provides that ‘‘discrimination’’ is to be 

construed broadly to include the various forms in which discrimination on the basis 

of disability occurs. The subsection adds provisions that direct the attorney general, 

50

the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations implementing the ‘‘ADA Restoration Act,’’ and establish 

that properly issued ADA regulations are entitled to deference in administrative and 

judicial proceedings. 

Subsection (i) corrects the ruling of the Supreme Court in Buckhannon Board and 

Care Home, Inc. v. West Virginia Department of Health and Human Resources, 

which rejected the catalyst theory in determining eligibility of ADA plaintiffs to attorney’s fees, by reinstating the catalyst theory. 

Section 4—Effective Date 

This section provides that the Act and the amendments it makes shall take effect 

upon enactment, and shall apply to cases that are pending when it is enacted or 

that are filed thereafter. 

The ADA Restoration Act of 2004: A Draft Bill 

To amend the Americans with Disabilities Act (ADA) of 1990 to restore the broad 

scope of protection and the remedies available under the Act, and to clarify the inconsistency with the Act of certain defenses. 

Be it enacted by the Senate and House of Representatives of the United States 

of America in Congress assembled, 

Section 1.—Short Title. 

This Act may be cited as the ‘‘ADA Restoration Act of 2004.’’

Section 2.—Findings and Purposes. 

(a) Findings.—The Congress finds that——

(1) in enacting the ADA of 1990, Congress intended that the Act ‘‘establish a clear 

and comprehensive prohibition of discrimination on the basis of disability,’’ and provide broad coverage and vigorous and effective remedies without unnecessary and 

obstructive defenses; 

(2) some decisions and opinions of the Supreme Court have unduly narrowed the 

broad scope of protection afforded in the ADA, have eliminated or narrowed remedies meant to be available under the Act, and have recognized certain defenses 

that run counter to the purposes of the Act; 

(3) in enacting the ADA, Congress recognized that physical and mental impairments are natural and normal parts of the human experience that in no way diminish a person’s right to fully participate in all aspects of society, but Congress also 

recognized that people with physical or mental impairments having the talent, 

skills, abilities, and desire to participate in society are frequently precluded from 

doing so because of prejudice, antiquated attitudes, or the failure to remove societal 

and institutional barriers; 

(4) Congress modeled the ADA definition of disability on that of Section 504 of 

the Rehabilitation Act of 1973, which had to the time of the ADA’s enactment been 

construed broadly to encompass both actual and perceived limitations, and limitations imposed by society; the broad conception of the definition had been underscored by the Supreme Court’s statement in its decision in School Board of Nassau 

County v. Arline, 480 U.S. 273, 284 (1987), that the Section 504 definition ‘‘acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment;’’

(5) in adopting the Section 504 concept of disability in the ADA, Congress understood that adverse action based on a person’s physical or mental impairment might 

have nothing to do with any limitations caused by the impairment itself; 

(6) instead of following congressional expectations that disability would be interpreted broadly in the ADA, the Supreme Court has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), that the elements of 

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

qualifying as disabled,’’ and, consistent with that view, has narrowed the application 

of the definition in various ways; 

(7) contrary to explicit congressional intent expressed in the ADA committee reports, the Supreme Court has eliminated from the Act’s coverage individuals who 

have mitigated the effects of their impairments through the use of such measures 

as medication and assistive devices; 

(8) contrary to the expectations of Congress in enacting the ADA, the Supreme 

Court has rejected the ‘‘catalyst theory’’ in the awarding of attorney’s fees and litigation costs under the Act, and has ruled that punitive damages may not be awarded 

in private suits under Section 202 of the Act; 

(9) contrary to congressional intent and the express language of the ADA, the Supreme Court has recognized the defense that a worker with a disability could pose 

a direct threat to her or his own health or safety; 

51

(10) contrary to carefully crafted language in the ADA, the Supreme Court has 

recognized a reasonableness standard for reasonable accommodation distinct from 

the undue hardship standard that Congress had imposed; 

(11) contrary to congressional intent, the Supreme Court has made the reasonable 

accommodation rights of workers with disabilities under the ADA subordinate to seniority rights of other employees; and 

(12) legislation is necessary to return the ADA to the breadth of coverage, the 

array of remedies, and the finely calibrated balance of standards and defenses Congress intended when it enacted the Act. 

(b) Purposes.—The purposes of this Act are——

(1) to effect the ADA’s objectives of providing ‘‘a clear and comprehensive national 

mandate for eliminating discrimination’’ and ‘‘clear, strong, and enforceable standards addressing discrimination’’ by restoring the broad scope of protection and the 

remedies available under the ADA, and clarifying the inconsistency with the Act of 

certain defenses; 

(2) to respond to certain decisions of the Supreme Court that have narrowed the 

class of people who can invoke the protection from discrimination the ADA provides, 

reduced the remedies available to successful ADA claimants, and recognized or permitted defenses that run counter to ADA objectives; 

(3) to reinstate original congressional intent regarding the definition of disability 

by clarifying that ADA protection is available for all individuals who are subjected 

to adverse treatment based on actual or perceived impairment, or are adversely affected by prejudiced attitudes, such as myths, fears, ignorance, or stereotypes concerning disability or particular disabilities, or by the failure to remove societal and 

institutional barriers; 

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

(5) to ensure that the rights afforded by the ADA are not subordinated by paternalistic and misguided attitudes and false assumptions about what a person with 

a physical or mental impairment can do without endangering the individual’s own 

personal health or safety; 

(6) to ensure that the rights afforded by the ADA are not subordinated to seniority 

rights of other employees in regard to an otherwise vacant job position to which the 

individual requires transfer as a reasonable accommodation; and 

(7) to ensure that the carefully crafted standard of undue hardship as a limitation 

on reasonable accommodation rights afforded by the ADA shall not be undermined 

by recognition of a separate and divergent reasonableness standard. 

Section 3.—Amendments to the ADA of 1990. 

(a) Discrimination.—References in the ADA to discrimination ‘‘against an individual with a disability’’ or ‘‘against individuals with disabilities’’ shall be replaced 

by references to discrimination ‘‘on the basis of disability’’ at each and every place 

that such references occur. 

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

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

‘‘(1) though variation in people’s abilities and disabilities across a broad spectrum 

is a normal part of the human condition, some individuals have been singled out 

and subjected to discrimination because they have conditions considered disabilities 

by others; other individuals have been excluded or disadvantaged because their 

physical or mental impairments have been ignored in the planning and construction 

of facilities, vehicles, and services; and all Americans run the risk of being discriminated against because they are misperceived as having conditions they may not actually have or because of misperceptions about the limitations resulting from conditions they do have;’’

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

‘‘(7) some groups or categories of individuals with disabilities have been subjected 

to a history of purposeful unequal treatment, have had restrictions and limitations 

imposed upon them because of their impairments, and have been relegated to positions of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not 

truly indicative of the individual ability of such individuals to participate in, and 

contribute to, society; classifications and selection criteria that are based on prejudice, ignorance, myths, irrational fears, or stereotypes about disability should be 

strongly disfavored, subjected to skeptical and meticulous examination, and permitted only for highly compelling reasons;’’

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

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

52

‘‘(10) discrimination on the basis of disability is the result of the interaction between an individual’s actual or perceived impairment and attitudinal, societal, and 

institutional barriers; individuals with a range of actual or perceived physical or 

mental impairments often experience denial or limitation of opportunities resulting 

from attitudinal barriers, including negative stereotypes, fear, ignorance, and prejudice, in addition to institutional and societal barriers, including architectural, transportation, and communication barriers, and the refusal to make reasonable modifications to policies, practices, or procedures, or to provide reasonable accommodations or auxiliary aids and services.’’

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

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

‘‘(2) Disability. 

‘‘(A) In General.—The term ‘‘disability’’ means, with respect to an individual——

(i) a physical or mental impairment; 

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

(iii) a perceived physical or mental impairment. 

‘‘(B) Construction.——

(i) The existence of a physical or mental impairment, or a record or perception 

of a physical or mental impairment, shall be determined without regard to mitigating measures; 

(ii) The term ‘‘mitigating measure’’ means any treatment, medication, device, or 

other measure used to eliminate, mitigate, or compensate for the effect of an impairment, and includes prescription and other medications, personal aids and devices 

(including assistive technology devices and services), reasonable accommodations, or 

auxiliary aids and services; and 

(iii) actions taken by a covered entity because of a person’s use of a mitigating 

measure or because of a side effect or other consequence of the use of such a measure shall be considered ‘on the basis of disability.’ ’’

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

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

‘‘(3) Physical or mental impairment.—The term ‘‘physical or mental impairment’’ means—— ‘‘(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical 

loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; 

reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or 

(B) any mental or psychological disorder, such as mental retardation, organic 

brain syndrome, emotional or mental illness, and specific learning disabilities. 

‘‘(4) Record of physical or mental impairment.—The terms ‘‘record of a physical 

or mental impairment’’ or ‘‘record of impairment’’ means having a history of, or having been misclassified as having, a physical or mental impairment. 

‘‘(5) Perceived physical or mental impairment.—The terms ‘‘perceived physical or 

mental impairment’’ or ‘‘perceived impairment’’ mean being regarded as having or 

treated as having a physical or mental impairment.’’

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

amended——

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

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

‘‘(B) Construction.—The term ‘‘direct threat’’ includes a significant risk of substantial harm to a customer, client, passerby, or other person that cannot be eliminated 

by reasonable accommodation. Such term does not include risk to the particular applicant or employee who is or is perceived to be the source of the risk.’’

(e) Reasonable accommodation.—Subsection 101(9) of the ADA of 1990 (42 U.S.C. 

12111(9)) is amended——

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

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

‘‘(B) Reasonableness.—A reasonable accommodation is a modification or adjustment that enables a covered entity’s employee or applicant with a disability to enjoy 

equal benefits and privileges of employment or of a job application, selection, or 

training process, provided that——

(i) the individual being accommodated is known by the covered entity to have a 

mental or physical limitation resulting from a disability, is known by the covered 

entity to have a record of a mental or physical limitation resulting from a disability, 

or is perceived by the covered entity as having a mental or physical limitation resulting from a disability; 

(ii) without the accommodation, such limitation will prevent the individual from 

enjoying such equal benefits and privileges; and 

53

(iii) the covered entity may establish, as a defense, that a particular accommodation is unreasonable by demonstrating that the accommodation would impose an 

undue hardship on the operation of the business of such covered entity.’’

(f) Nonsubordination.—Section 102 of the ADA of 1990 (42 U.S.C. 12112) is 

amended by adding after the current subsection (c) a new subsection as follows: 

‘‘(d) Nonsubordination.—A covered entity’s obligation to comply with this Title is 

not affected by any inconsistent term of any collective bargaining agreement or seniority system. The rights of an employee with a disability under this Title shall 

not be subordinated to seniority rights of other employees in regard to an otherwise 

vacant job position to which the individual with a disability requires transfer as a 

reasonable accommodation. Covered entities under this Title shall include recognition of ADA rights in future collective bargaining agreements.’’

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

(1) by redesignating the current textual provision as subsection (a)—In general ., 

and adding at the beginning of the text of subsection (a) the phrase ‘‘Subject to subsections (b), (c), and (d),’’; and 

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

‘‘(b) Claims based on proof of in tent ional discrimination.—In an action brought 

by a person aggrieved by discrimination on the basis of disability (referred to in this 

section as an ‘aggrieved person’) under Section 202 of this Act, or under Section 504 

of the Rehabilitation Act of 1973 (29 U.S.C. 794), against an entity covered by those 

provisions who has engaged in unlawful intentional discrimination (not a practice 

that is unlawful because of its disparate impact) prohibited under those sections (including their implementing regulations), an aggrieved person may recover equitable 

and legal relief (including compensatory and punitive damages) and attorney’s fees 

(including expert fees) and costs. 

‘‘(c) Claims based on disparate impact .—In an action brought by an ‘aggrieved 

person’ under Section 202 of this Act, or under Section 504 of the Rehabilitation Act 

of 1973 (29 U.S.C. 794), against an entity covered by those provisions who has engaged in unlawful disparate impact discrimination prohibited under those sections 

(including their implementing regulations), an aggrieved person may recover equitable relief and attorney’s fees (including expert fees) and costs. 

‘‘(d) Construction.—In addition to other actions that constitute unlawful intentional discrimination under subsection (b), a covered entity engages in such discrimination when it intentionally refuses to comply with requirements of Section 

202 of this Act, or of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 

or of their implementing regulations, by willfully, unlawfully, materially, and substantially——

(1) failing to meet applicable program and facility accessibility requirements for 

existing facilities, new construction and alterations; 

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

(3) failing to ensure effective communication access; or 

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

category of disability.’’

(h) Construction.—Section 501 of the ADA of 1990 (42 U.S.C. 12201) is amended 

by adding after the current subsection (d) the following new subsections: 

‘‘(e) Supportive construction.—In order to ensure that this Act achieves its objective of providing a comprehensive prohibition of discrimination on the basis of disability, discrimination that is pervasive in America, the provisions of the Act shall 

be flexibly construed to advance its remedial purposes. The elements of the definition of ‘‘disability’’ shall be interpreted broadly to encompass within the Act’s protection all persons who are subjected to discrimination on the basis of disability. The 

term ‘‘discrimination’’ shall be interpreted broadly to encompass the various forms 

in which discrimination on the basis of disability occurs, including blanket exclusionary policies based on physical, mental, or medical standards that do not constitute legitimate eligibility requirements under the Act; the failure to make a reasonable accommodation, to modify policies and practices, and to provide auxiliary 

aids and services, as required under the Act; adverse actions taken against individuals based on actual or perceived limitations; disparate, adverse treatment of individuals based on disability; and other forms of discrimination prohibited in the Act. 

‘‘(f) Regulations implementing the ADA Restoration Act.—Not later than 180 days 

after the date of enactment of The ADA Restoration Act of 2004, the attorney general, the Equal Employment Opportunity Commission, and the Secretary of Transportation shall promulgate regulations in an accessible format that implement the 

provisions of the ADA Restoration Act. 

‘‘(g) Deference to regulations.—Duly issued federal regulations for the implementation of the ADA, including provisions implementing and interpreting the definition 

54

of disability, shall be entitled to deference by administrative bodies or officers and 

courts hearing any action brought under the Act.’’

(i) Attorney’s fees.—Section 505 of the ADA of 1990 (42 U.S.C. 12205) is amended 

by redesignating the current textual provision as subsection (a)—In general, and 

adding additional subsections as follows: 

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

‘‘(c) Relationship to other laws——

(1) Special criteria for prevailing defendants—If any other Act of Congress, or any 

ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, or of any judicial or administrative rule, which addresses 

the recovery of attorney’s fees, requires a defendant, but not a plaintiff, to satisfy 

certain different or additional criteria to qualify for the recovery of attorney’s fees, 

subsection (b) shall not affect the requirement that such defendant satisfy such criteria. 

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

satisfy such criteria.’’

Section 4.—Effective Date. 

This Act and the amendments made by this Act shall take effect upon enactment 

and shall apply to any case pending or filed on or after the date of enactment of 

this Act. 

ENDNOTES

1 Courts Continuing Narrow Interpretation of ‘‘Disability,’’ Case Study Shows, DISABILITY 

COMPLIANCE BULL. Mar. 27, 1997, at 10. See also, Amy L. Allbright, ABA Special Feature: 

2003 Employment Decisions Under the ADA Title I—Survey Update, 28 MENTAL & PHYSICAL L. REP. 319, 320 (2004) (‘‘A clear majority of the employer wins in this survey were due 

to [the] employees’ failure to show that they had a protected disability.’’). 2 42 U.S.C. § 12101. 

3 National Council on Disability, Equality of Opportunity : The Making of the Americans with 

Disabilities Act at 184 (1997). 4Statement by Vice President Al Gore, December 14, 1998, quoted in the Presidential Task 

Force on Employment of Adults with Disabilities, Working on Behalf of Americans with Disabilities: President Clinton and Vice President Gore: Goals and Accomplishments at 17. 5George W. Bush, Presidential Proclamation on the Anniversary of the Americans with Disabilities Act, 2002 ( July 26, 2002 ). 6 NCD, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities 

Act at 1 (2000). 7 NCD, Voices of Freedom: America Speaks Out on the ADA at 26 (1995). 

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

9George W. Bush, Presidential Proclamation on the Anniversary of the Americans with Disabilities Act, 2002 ( July 26, 2002 ). 10See Mary Crossley, ‘‘The Disability Kaleidoscope,’’ 74 Notre Dame Law Review 621, 622 

(1999). 11Tudyman v. United Airlines, 608 F. Supp. 739 (C.D.Cal. 1984). 12 H.R. Rep. No. 101-485, pt. 3, at 30 (1990). 13Morrow v. City of Jacksonville, 941 F. Supp. 816, 823 n. 3 (E.D.Ark. 1996). 14See, e.g., Stone v. St. Joseph’s Hospital of Parkersburg, 538 S.E.2d 389, 400-402, 404 (W.Va. 

2000), in which the Supreme Court of West Virginia, after acknowledging that the state law 

had been amended in 1989 to adopt the federal three-prong definition of disability, chose to reject the ‘‘restrictive approach’’ of federal interpretation of the definition, endorsing an ‘‘independent approach * * * not mechanically tied to federal disability discrimination jurisprudence.’’ The court also cited a number of cases from other states that had interpreted the definition of disability more expansively than under federal nondiscrimination laws. Id. at 405 and 

n. 23. Likewise, in Dahill v. Police Department of Boston, 434 Mass. 233, 748 N.E.2d 956 (2001), 

the Massachusetts Supreme Judicial Court embraced virtually every argument advanced by disability rights advocates that the United States Supreme Court had rejected in Sutton v. United 

Airlines, and ruled that mitigating measures should not be considered in determining whether 

an individual has a ‘‘handicap’’ under Massachusetts antidiscrimination law. According to the 

Dahill Court, the public policy underlying the antidiscrimination statute supported its interpretation that mitigating measures should be excluded, while embracing the Sutton standard would 

‘‘exclude[ ] from the statute’s protection numerous persons who may mitigate serious physical 

or mental impairments to some degree, but who may nevertheless need reasonable accommodations to fulfill the essential functions of a job.’’ Id. at 240 and n. 10. 15See, e.g., Granovsky v. Canada, [2000] 1 S.C.R. 703, in which the Supreme Court of Canada 

expressly rejected the restrictive approach of the U.S. Supreme Court in Sutton v. United AirVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
55

lines, noted the ‘‘ameliorative purpose’’ and ‘‘remedial component’’ of the disability nondiscrimination provision of the Canadian Charter of Rights and Freedoms, and adopted an approach in which the focus is ‘‘not on the impairment as such, nor even any associated functional 

limitations, but is on the problematic response of the [defendant] state to either or both of these 

circumstances.’’ The Court added that it was the alleged discriminatory action ‘‘that stigmatizes 

the impairment, or which attributes false or exaggerated importance to the functional limitations (if any) * * *’’ Similarly, in Quebec v. Canada, [2000] 1 S.C.R. 665, the Supreme Court 

of Canada noted that ‘‘[h]uman rights legislation is [to be] given a liberal and purposive interpretation,’’ and ruled, ‘‘The objectives of the Charter, namely the right to equality and protection 

against discrimination, cannot be achieved unless we recognize that discriminatory acts may be 

based as much on perception and myths and stereotypes as on the existence of actual functional 

limitations. Since the very nature of discrimination is often subjective, assigning the burden of 

proving the objective existence of functional limitations to a victim of discrimination would be 

to give that person a virtually impossible task. Functional limitations often exist only in the 

mind of other people, in this case that of the employer.’’ The Court ruled that ‘‘a ‘handicap,’ 

therefore, includes ailments which do not in fact give rise to any limitation or functional disability.’’ 16Some states, such as California and Rhode Island, have amended their disability nondiscrimination statutes to reject federal case law narrowing the scope of individuals protected. 

Others, such as Connecticut, New Jersey, and New York have never adopted the rigid and stringent concept of ‘‘disability’’ consisting of an ‘‘impairment’’ which ‘‘substantially limits’’ one or 

more major life activities. For a discussion of state laws that have deviated from the restrictive 

federal model, see NCD’s paper titled Defining ‘‘Disability’’ in a Civil Rights Context: The 

Courts’ Focus on the Extent of Limitations as Opposed to Fair Treatment and Equal Opportunity. Paper No. 6 of NCD’s Policy Brief Series: Righting the ADA Papers can be found at 

http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 17For example, the definition of disability provisions of Australia’s Disability Discrimination 

Act of 1992 (4.(1)) and of Ireland’s Employment Equality Act (1998) (2), both of which were 

adopted after the ADA was enacted, are framed in very broad terms that encompass not only 

a wide variety of currently existing conditions, but also include any condition that previously 

existed but no longer does, that ‘‘may exist in the future,’’ or that ‘‘is imputed to a person.’’ 18 H.R. Rep. No. 101-485, pt. 2 at 52 (1990). 19 H.R. Rep. No. 101-485, pt. 3 at 28 (1990). 20Todd v. Academy Corporation, 57 F. Supp. 2d 448, 453-54 (S.D. Tex. 1999). 21 In light of the courts’ failure to appreciate and apply the social model of disability discrimination, NCD’s Righting the ADA report suggests that the social model should be made explicit 

by incorporating it as an additional ADA finding as follows: 

Discrimination on the basis of disability is the result of the interaction between an individual’s actual or perceived impairment and attitudinal, societal, and institutional barriers; individuals with a range of actual or perceived physical or mental impairments often experience denial 

or limitation of opportunities resulting from attitudinal barriers, including negative stereotypes, 

fear, ignorance, and prejudice, in addition to institutional and societal barriers, including architectural, transportation, and communication barriers, and the refusal to make reasonable modifications to policies, practices, or procedures, or to provide reasonable accommodations or auxiliary aids and services. 

Id. at 109. 

22 Robert L. Burgdorf Jr. ‘‘Substantially Limited’’ Protection from Disability Discrimination: 

The Special Treatment Model and Misconstructions of the Definition of Disability, 42 

VILLANOVA LAW REVIEW 409 (1997). 23 Id. at 534-536 (footnotes omitted). 24 U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 

(1983), at p. 87. 25See, for example, National Council on Disability, The Americans with Disabilities Act Policy 

Brief Series: Righting the ADA, No. 5, ‘‘Negative Media Portrayals of the ADA’’ at http://

www.ncd.gov/newsroom/publications/2003/policybrief.htm. 26 Accommodating the Spectrum of Individual Abilities, p. 95, n. 17). 27 Richard K. Scotch, Models of Disability and the Americans with Disabilities Act, 21 

BERKELEY JOURNAL OF EMPLOYMENT AND LABOR LAW 213, 214-15 (2000). 28Linda Hamilton Krieger, Afterword: Socio-Legal Backlash, 21 BERKELEY JOURNAL OF 

EMPLOYMENT AND LABOR LAW 476, 480-81 (2000). 29See, for example, National Council on Disability, The Americans with Disabilities Act Policy 

Brief Series: Righting the ADA, No. 5, ‘‘Negative Media Portrayals of the ADA’’ at http://

www.ncd.gov/newsroom/publications/2003/policybrief.htm. 30 National Council on Disability, Toward Independence, Appendix of Topic Papers (1986) at 

pp. A-22 to A-23. 31 Righting the ADA at p. 109. 32 Id. 33Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 194 (2002). 34 H.R. REP. NO. 101-485, pt. 2, at 53 (1990). 35S. REP. NO. 101-116 at 24 (1989). 36 Id. 37 H.R. REP. NO. 101-485, pt. 2, at 53 (1990); S. REP. NO. 101-116 at 23-24 (1989); H.R. REP. 

NO. 101-485, pt. 3, at 30 (1990). 38S. REP. NO. 116, 101st Cong., 1st Sess. 24 (1989) (emphasis added). 39 Id. 40 Id. 41 H.R. REP. NO. 101-485, pt. 2, at 53(54 (1990). 42 H.R. REP. NO. 101-485, pt. 3, at 30 (emphasis added). 

56

43 Id. at 30(31. 44 29 C.F.R. ( 1630.2(o)(1)(ii) (1993). Similar definitions are provided for accommodations in 

the job application process and in regard to job benefits and privileges. 29 C.F.R. ( 1630.2(o)(1)(i) 

(1993) (‘‘Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires’’); 29 

C.F.R. ( 1630.2(o)(1)(iii) (1993) (‘‘Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by 

its other similarly situated employees without disabilities.’’). 45 29 C.F.R. 414(15 (app. to pt. 1630) (commentary on ( 1630.9) (1993). 46 H.R. REP. NO. 101-485 pt. 2, at 65 (1990); S. REP. NO. 101-116 at 34 (1989). 47Id. 48 Id. 49 H.R. REP. NO. 101-485 pt. 2, at 66 (1990); S. REP. NO. 101-116 at 35 (1989). 50 29 C.F.R. 414 (app. to pt. 1630) (commentary on ( 1630.9) (1993). 51 Id. 52 29 C.F.R. 414 (app. to pt. 1630) (commentary on ( 1630.9) (1993); H.R. REP. NO. 101-485 

pt. 2, at 66 (1990); S. REP. NO. 101-116 at 35 (1989). 53 29 C.F.R. 414 (app. to pt. 1630) (commentary on (1630.9) (1993); H.R. REP. NO. 101-485 

pt. 2, at 66-67 (1990); S. REP. NO. 101-116 at 35 (1989). 

Mr. ANDREWS. Thank you, and I am certain in the dialogue with 

the members there will be those opportunities. 

I thank each of the four of you for excellent testimony. 

Mr. McClure is not working as an electrician today at General 

Motors because the court found he wasn’t disabled. That is the reason. A person with muscular dystrophy is not disabled. Mr. Fram, 

you have acknowledged that people who should have been protected by the law aren’t, and that is a problem. I appreciate that. 

It is a good point for us to start our discussion. I want to explore 

the concerns that you have raised about the remedial measures in 

Mr. Hoyer’s legislation. 

Your organization is thoroughly involved, you said, in training 

and teaching people how to comply with this law. Is that correct? 

Mr. FRAM. Yes. 

Mr. ANDREWS. And you have done extensive writing. You said 23 

editions of your book on this subject? 

Mr. FRAM. Yes. 

Mr. ANDREWS. That is very impressive, and I am sure that as 

part of that you have done extensive research on the case law interpreting the ADA and on similar statutes around the country. Is 

that correct? 

Mr. FRAM. Mostly the ADA. 

Mr. ANDREWS. Okay. On page three of your testimony, you talk 

about the specter of people raising claims because of chipped tooth, 

the flu, broken finger. And you indicate that that is the plethora 

of litigation that would flow if Mr. Hoyer’s bill were to be adopted. 

In my state of New Jersey for nearly four decades we have had a 

very broad definition of ‘‘disability.’’ It does not limit the definition 

by substantiality or any of the other criteria that you talked about. 

Are you aware of any cases brought under the New Jersey statute 

by someone who claims that a chipped tooth is a disability? 

Mr. FRAM. I haven’t researched the New Jersey statute. 

Mr. ANDREWS. Your answer is you don’t know because you 

haven’t researched it? 

Mr. FRAM. The New Jersey statute. 

Mr. ANDREWS. Okay. California in 2000 adopted a very broad 

definition of ‘‘disability’’ that to my understanding does not have 

limitations based on substantiality. Are there any data that would 

indicate that there has been this flood of litigation from California? 

57

Mr. FRAM. California actually still does have—it has to limit a 

major life activity. So they haven’t totally dropped the——

Mr. ANDREWS. But the California definition is much broader than 

the definition of ‘‘disability’’ in the federal statute, isn’t it? 

Mr. FRAM. Absolutely. 

Mr. ANDREWS. Well, there is one piece of data, and I wonder if 

you would dispute it, that the percentage of discrimination claims 

owing to disability in California is the same as it was in the total 

universe before this new definition. In other words, X percent of 

discrimination claims were based on disability before this law, and 

it is still about X percent. 

Now, if there was going to be this flood of litigation because of 

a broader definition, wouldn’t disability claims make up a larger 

share of employment claims in California? Wouldn’t that have happened? 

Mr. FRAM. I honestly don’t think there would be a flood of litigation. The problem is——

Mr. ANDREWS. Contrary to what you just said? 

Mr. FRAM. I don’t think there would be a flood of litigation, but 

what there would now be is a brand new responsibility for employers to have to provide reasonable accommodation to somebody who 

comes in and says, ‘‘I have a stomach ache; I don’t want to go to 

that meeting because I have a stomach ache.’’ Or, ‘‘I need time off 

because of my chipped tooth.’’

Mr. ANDREWS. But your position, I think, then assumes that employers would just do that, not dispute it and there wouldn’t be 

more claims resulting in court. Isn’t that a little counter-intuitive? 

Mr. FRAM. Smart employers do the right thing. The question is, 

would this create a federal requirement that an employer has to let 

somebody out of a meeting because of a stomach ache? 

Mr. ANDREWS. I guess I just respectfully disagree with your argument. It seems to me that your premise today is that a broader 

definition of ‘‘disability’’ under federal law will create more claims. 

And we have a broader definition of ‘‘disability’’ under California 

law and it didn’t. 

Mr. Imparato, do you have some comment on what California 

and New Jersey have done? 

Mr. IMPARATO. Well, I appreciate the point that you are making. 

The ADA definition was taken from the Rehab Act. A number of 

states have had broader definitions of ‘‘disability.’’ But the point is 

that the ADA creates a floor. What we are trying to do with the 

ADA Restoration Act is reestablish a floor that protects people with 

epilepsy, diabetes and a whole host of conditions that have been interpreted out. We are not aware of more litigation or percentagewise more litigation in states like New Jersey, California, Maine, 

Washington state, that have broader protection. 

Mr. ANDREWS. Mr. McClure, what is it that General Motors 

needed to do for you so that you could have done that job as an 

electrician really well? What did they need to do? 

Mr. MCCLURE. They wouldn’t have had to buy nothing. They already had ladders there. They had all the lifts, everything. All they 

had to do was put me to work. 

58

Mr. ANDREWS. Didn’t they actually test you, sort of on the job, 

to do the job you were supposed to do and you passed the test and 

got the job? 

Mr. MCCLURE. Yes, sir. 

Mr. ANDREWS. Sounds pretty reasonable to me. 

I thank the witnesses, and I would at this time turn to the ranking member, Mr. McKeon, for questioning. 

Mr. MCKEON. Thank you, Mr. Chairman. 

First, Mr. Fram, did you have something more that you wanted 

to add about the response to Mr. Andrews’s question about New 

Jersey? 

Mr. FRAM. No. I did want to add that, of course, there are all 

these other parts as well, like the disability-related questions in 

medical exams. I mean, in the real workplace, what supervisor 

doesn’t say to an employee, ‘‘how did you break your leg,’’ if the 

person comes in. And I don’t think there can be any dispute that 

changing the definition to mean ‘‘any impairment’’ would make a 

question like that flatly illegal. 

Now, question—Is that going to lead to litigation? Who knows 

whether it is going to lead to litigation. So my point is, whether 

or not there is going to be a plethora of litigation, should it be a 

federal requirement, should it be a federal prohibition that a supervisor couldn’t say, ‘‘do you have a cold.’’ Is it a federal requirement 

that an employee would have to give somebody with an ear ache 

time off. 

Now, of course, there is already the Family and Medical Leave 

Act which covers serious health conditions. This would essentially 

make the Family and Medical Leave Act irrelevant for half of it, 

anyway—the part about the person’s serious health condition. 

Mr. MCKEON. I would like to ask—I am not an attorney, and I 

know Mr. Andrews is. I know several of you are, and you could 

probably debate this a long, long time. But what I would like to ask 

is, I mean it seems incredulous to me that Mr. McClure could be 

told they can’t hire him because he has a disability that precludes 

him from doing the job, and then when he sues on that basis, they 

say, no, you don’t have a disability. 

How would you gentlemen, as attorneys, fix that without having 

some unintended consequences that would go so far as some of the 

things you are talking about, Mr. Fram? 

Mr. BURGDORF. I think you fix it by going with the original legislative history, which says that Sutton is wrong. The Supreme Court 

was wrong in Sutton and Murphy and Kirkingburg. 

Mr. MCKEON. My understanding is, not being an attorney, that 

the Supreme Court is the final word on the law. 

Mr. BURGDORF. But you get to make the law. [Laughter.] 

Mr. MCKEON. So we write a law, and I have seen unintended 

consequences come from laws that we have passed. So you would 

suggest we rewrite the law and you would have some suggestions 

as to how we would do it without incurring those unintended consequences. Dr. Burgdorf? 

Mr. BURGDORF. I think it is a great question. As I understand 

Mr. Fram’s testimony, he is sympathetic and understanding about 

the issue of mitigating measures, but he would like to limit the correction to that. For many people, including Mr. McClure, it is not 

59

going to help him. This is not a mitigating measures case, and 

many of the cases are not mitigating measures cases. 

Mr. MCKEON. How would you fix it? 

Mr. BURGDORF. That is the proposal that I am trying to explain 

and defend, H.R. 3195. I think it is a very good fix. 

Mr. MCKEON. It is a perfect bill and no problems with it? 

Mr. BURGDORF. No, not at all. In fact, if we can’t get people like 

you to agree or to buy into the approach that the bill is proposing, 

then we are not going to get anywhere. But I think properly explained, it is a good bill. Could it use some tinkering? Sure. 

Mr. MCKEON. Let me tell you my concern. We have had some 

bills that have come before us in this committee last year where 

we really tried to make some little tinkering changes. For instance, 

one of them was card check. We had 15 amendments, and I think 

some of them were very good amendments. We did not get one 

Democratic vote. We did not change one word in that bill. 

Now, it is not becoming law. They can’t get it through the Senate 

and the president wouldn’t sign it. But my concern is, given the environment that we have here now—I mean, to me it is ludicrous 

that we can’t fix a problem like this, that my real concern is as we 

go through this process, this bill will go exactly the way it is written right now, even though you would say it is probably not perfect, 

and you are here as a witness for the bill. You would maybe make 

some tinkering changes. I would like to know what those are because I would like to offer them as an amendment when we get to 

that process. 

I would hope that there would be some real working together, 

rather than just saying, oh, you know, this is on a fast track and 

it is going to go and that is the way it is. And then what will happen is it probably will not become law, and we will end up with 

more of Mr. McClure’s situations, and I don’t think any of us want 

that. 

I don’t think any of us want to have that kind of problem. He 

should be working now, as far as I am concerned, for GM. It is his 

life-long ambition. He could do the job. And to be told that he can’t 

do it because he is disabled, and then when he takes it to court, 

the highest court in the land turns it down because he is not disabled. It is crazy. 

But I have real concern that there won’t be a desire to work together to really tinker around the edges to make it—I don’t think 

we would get a perfect bill—but to make it a better bill. 

Mr. BURGDORF. One of the things that I have always been surprised and delighted about is how very bipartisan the ADA and 

similar legislation has been in the Congress. The ADA legislation 

passed every one of the five substantive committees and on the 

floor, never by a vote of less than 90 percent in favor. It is incredibly bipartisan. 

Mr. MCKEON. I would still like to have your suggestions to tinker 

around the edges to make it better, and then see if we are able to 

do that. 

Mr. ANDREWS. The gentleman’s time has expired. 

I would say to my friend, the ranking member, that you and Mr. 

Miller worked together with Mr. Castle and Ms. Woolsey and others, and Mr. Kildee, to produce the Head Start bill that I think was 

60

excellent. We all worked together to produce a genetic discrimination bill which passed the House overwhelmingly. It has run into 

some issues in the Senate, but I think we can work together on 

that. And we can do the same, and I hope that we would on this. 

Mr. MCKEON. Those are some great examples. I could list a 

whole bunch that——

Mr. ANDREWS. Sure. I would say for the record that the only perfect bills are those reported out by the Health Subcommittee. 

[Laughter.] 

The chair recognizes the gentleman from Michigan, Mr. Kildee, 

for 5 minutes. 

Mr. KILDEE. I thank the chairman. I thank him for having this 

hearing. 

You know, I have held many jobs in my life. I have been a lettercarrier. I have been a Latin teacher. I have been an electrician. I 

have been a lawmaker. As a matter of fact, the job that is probably 

the longest in my life has been lawmaker, for 32 years. But I was 

an electrician, so I know quite a bit about the responsibilities of 

being an electrician. 

Let me—and Mr. McClure you may answer this, too—but I will 

address it to Mr. Imparato and Mr. Burgdorf. It seems that this is 

really, and we often overuse the word ‘‘catch-22,’’ but it is kind of 

a catch-22 situation really situation here. It is a classic example of 

catch-22. How would H.R. 3195 address this problem? I mean, this 

man’s life—he sold his house, moved to Texas, and to have this absurdity, that has led to a great injustice, afflict him? Maybe Mr. 

Imparato and Mr. Burgdorf, if you could? 

Mr. IMPARATO. Thank you for that question. 

First, just on the catch-22 issue, you are exactly right. When you 

have the kind of strict standard that the Supreme Court has created around what is a disability, you end up having to introduce 

a lot of evidence to meet that narrow threshold that then can and 

will be used against you on the issue that matters, which is whether you are qualified for the position. And anything that you introduce to show that you are qualified for the position can and will 

be used against you on whether you are disabled enough to have 

a civil right. 

So you are exactly right. It is a catch-22. And it is not a catch22 that existed under the Rehab Act, which was the definition that 

Congress was modeling the ADA after. 

H.R. 3195 would fix this problem by getting past the issue of 

whether he is in the protected class very quickly. He has an impairment, and you quickly get to the issue that matters, which is, 

was he qualified for the position in question? To the extent he was 

asked to do things that require accommodation, were there reasonable accommodations that would allow him to do the essential functions of the job? And if the employer was not justified in denying 

him the position, the employer would lose. But we never reached 

that issue because so much time was spent trying to establish the 

existence of a disability. 

So I think the catch-22 term is exactly the right term for where 

the courts have brought us under the ADA. 

Mr. KILDEE. Mr. Burgdorf? 

61

Mr. BURGDORF. The only thing I would have to add to that is 

sometimes it is worse than a catch-22. Even if there were no qualified concept in the ADA, you can’t get past the proving the disability. People have a very difficult, impossible time meeting that 

burden. The fact is, I think the underlying problem is a mis-assumption about disability, that a person really is only disabled if 

somehow the condition has really messed up their life. And most 

of us who have disabilities try to deal with our lives and have successful lives and go on to live what people would call ‘‘normal 

lives.’’

Then, when we are shocked to find out somebody is discriminating against us, we want to be relieved from that. We want to 

have the ADA to protect us. That idea that you have to be really 

messed up is what the ADA definition has turned into. It is not 

what Congress intended. It is not what President Bush thought he 

was signing. It is not what those of us who worked on the National 

Council on Disability’s proposal that was before, and was ultimately enacted by Congress and what we were trying to do. 

We were very clear that if you were discriminated against based 

on a condition, that was enough. You have proven what you have 

to prove, and then we can argue about whether it was justified or 

not. We are not saying people with disabilities are going to win all 

their cases, but they ought to at least get in the courthouse door. 

Mr. KILDEE. I was present when President George H. Bush 

signed this into law. It was a joyous occasion, and he was expansive in his enthusiasm, and I think expansive in his idea of how 

this should be interpreted. To have Congress pass a law trying to 

find a reasonable remedy, a president signing it with enthusiasm—

this was truly a bit of strong bipartisan work within the Congress, 

and the president joyfully signing this bill. 

And the court, in kind of a grand isolation, saying this didn’t 

apply to Mr. McClure’s case was just, to my mind—sometimes law 

should be refined common sense, I think. I don’t think it was very 

refined or very common sense in this instance here. 

Mr. IMPARATO. Can I say one more thing? 

Mr. ANDREWS. Very briefly. 

Mr. IMPARATO. Briefly, I just—in terms of the unintended consequences, I just want to point out that whatever we do to try to 

keep the definition somewhat narrow can also have unintended 

consequences. That is why any PD feels that H.R. 3195 is a simple 

straightforward way to fix this problem. It came from a lot of work 

from the National Council on Disability, and any of these efforts 

to tinker with it, I would just encourage us to worry about unintended consequences on the other side, where the courts will jump 

on one word like they have under the ADA, and we are back to 

having to come back and fix a new problem that the courts have 

created. 

Mr. ANDREWS. The gentleman’s time has expired. 

Mr. KILDEE. Thank you very much, Mr. Chairman. 

Mr. ANDREWS. The chair recognizes the ranking member of the 

subcommittee, my friend from Minnesota, Mr. Kline, for 5 minutes. 

Mr. KLINE. Thank you, Mr. Chairman. 

Thank you, gentlemen, for being here and for your testimony. 

62

I think what we are seeing is that there is widespread agreement 

I believe on both sides of this aisle that we need to change the law 

so that we don’t have an incident such as we have seen with Mr. 

McClure. I think, as Mr. McKeon and others said, that is absurd. 

But I am concerned that in our effort to make sure that doesn’t 

happen to Mr. McClure or someone like that, that we don’t have 

those unintended consequences. 

When the ADA was enacted in 1990, one of the first findings included was that ‘‘43 million Americans have one or more physical 

or mental disabilities.’’ So I am wondering what the number would 

be. So let me start, Mr. Fram, I have about three questions for you, 

and we will go as quickly as we can. 

What do you think the language as it is now in this bill—what 

would that number 43 million be? 

Mr. FRAM. Well, it would have to be 350 million, because every 

single one of us has an impairment. I mean, every one of us has 

either a vision problem—we don’t have perfect vision—or we have 

had the flu. Because remember, this covers actual disability regarded as impairment, which is——

Mr. KLINE. I appreciate the answer, but again, the original intent, which the majority leader talked about, was to cover 43 million. And now in your interpretation, it is 350 million or whatever 

the current population of the United States is, and that was clearly 

not the original intent. So it raises the question, if every worker 

has some form of disability, what does that do for the workers who 

would truly need the protection—Mr. McClure’s example? 

Mr. FRAM. I think it would certainly limit an employer’s resources. Everybody agrees, I think everybody on this panel would 

agree that Mr. McClure, under what I am proposing in terms of reversing the Sutton case, that he would be covered. 

I respectfully disagree with Dr. Burgdorf because I think reversing Sutton would lead to Mr. McClure being covered because you 

would be looking at somebody without mitigating measures, which 

include behavioral modifications, and that was the reason the 

lower court excluded him, because he could reach certain heights 

if he used a ladder. At least that was my reading of the case, but 

if you look at him without behavioral modifications, he would be 

covered. 

But what it would wind up meaning, if everybody was covered, 

that the person who needs a modified schedule, for example, because she has breast cancer, and if that modified schedule has already been given to somebody who has the flu, it might not be 

available for her. So it would restrict what an employer could do 

for people who have serious conditions. 

Mr. KLINE. And have exactly the unintended consequence which 

we are trying to avoid here. We are trying to make sure that Americans with disabilities have the protection, and it waters it down 

so that every American is there, it simply will not be able to do 

that. While I have great faith in my chairman and all lawyers who 

look at these things, it is our job to get this language right, so it 

is not left to continuing battles in the courts over the definition, a 

concern that all of you have expressed. We really do need to get 

this right. 

63

Continuing again, Mr. Fram. In your testimony, you noted that 

H.R. 3195, the bill under consideration here, changes the burden 

of proof with respect to claims of discrimination. Can you take 

some time here to expand on that point? How is the burden of proof 

allocated under other civil rights statutes? How does that differ 

from H.R. 3195? 

Mr. FRAM. There is something called the McDonnell-Douglas 

standard. That is where employees, as a prima facie case, have to 

show they are in the protected group and that they are qualified 

to do the job. And what this bill would do is to change it in the 

ADA context to mean the employer now has the burden of showing 

that the person cannot do the job. 

I don’t think from a practical perspective that makes sense, because what courts have done—and honestly, I haven’t seen where 

there has been a problem with this, which is why I am surprised 

that it is in the bill. What courts do is they say to employers, ‘‘you 

have the burden of showing what the essential functions are,’’ and 

then they say to the individual, ‘‘you have the burden of showing 

you can do those essential functions.’’

That is allocating the burdens to the parties who have access to 

the evidence. This bill would make it the opposite of McDonnellDouglas. 

Mr. KLINE. Thank you. 

My time is just about to expire, but very quickly if I could ask 

the flanking attorneys here what they think that 43 million would 

look like under this bill—just a shot. 

Mr. BURGDORF. I would like to try to answer it because the Supreme Court quoted my law review article in the Sutton case about 

that issue as the explanation, and then completely misunderstood 

and misused it. The 43 million figure was put in—originally it was 

a 36 million figure—it was put in the National Council on Disability draft bill, and was proposed and put into its report, On The 

Threshold of Independence. And it was intended not as who is covered by the ADA. There is nowhere in the ADA or in that report 

that says that is how many people are covered by the ADA. It was 

trying to give an order of magnitude estimate of people with actual 

disabilities. 

The definition has three prongs—actual, record, and regarded as. 

No one had ever thought that 43 million people were who were protected by the ADA, and that is important because——

Mr. KLINE. Excuse me. What do you think that number would 

be—350 million? 

Mr. BURGDORF. The ADA would under this legislation and always has protected all Americans—not that all Americans have a 

right to bring a suit. They are protected. It protects associates of 

people with disabilities. It protects who regarded as who are just 

mistakenly thought to have a condition. Yes, all Americans are protected. Only some of them are going to be subjected to discrimination and therefore can go to court to do anything about it. 

Mr. KLINE. Thank you, professor. 

Mr. ANDREWS. Thank you, Mr. Kline. 

The chair recognizes the gentleman from Iowa, who has not only 

policy insight, but personal insight on these issues, Mr. Loebsack, 

for 5 minutes. 

64

Mr. LOEBSACK. Thank you, Mr. Chairman. 

Another point, if I may elaborate on a personal nature on all 

this, but at this moment in the interest of time, I will refrain from 

that—but I want to thank all the panelists for being here today as 

well. With the chair’s permission, I do want to enter a brief statement into the record on this matter. I won’t read that at the moment. 

I do want to just address an issue related to veterans, because 

you do say, Mr. Imparato, in your statement that you submitted for 

the record, on pages 9, 10, and 11, you refer to veterans who have 

returned and will be returning from the wars in Iraq and Afghanistan—and not just those veterans, but veterans of previous wars, 

too, who may be suffering from post-traumatic stress disorder. 

I am on the Armed Services Committee. As a freshman, I have 

been fortunate enough, I guess if you can call it that, to go to Iraq 

twice, and I just went to Afghanistan recently. We have a Veterans 

Administration hospital in my district in Iowa City, and I have visited that a number of times, as well as Walter Reed. 

If you could just elaborate on your reference to TBI and PTSD 

in your testimony, and enlighten us a little bit on that. But before 

you do that, I do want to express my desire, too, to make sure that 

we come together in a bipartisan way to solve this problem. I am 

really thankful to Ranking Member McKeon for his comments, and 

Mr. Kline as well. I think everybody here wants to resolve this 

problem, and it is a question of how we are going to do it. 

But if you could elaborate, and that is really the only question 

I have. Maybe Mr. Burgdorf might want to comment as well, if he 

has any thoughts. Thank you. 

Mr. IMPARATO. Sir, thank you for that question, Congressman 

Loebsack. The veterans who are returning from Iraq and Afghanistan are going to have the same definition of ‘‘disability’’ that we 

are talking about here applied to them if they experience employment discrimination. The veterans who are recovering, who are 

functioning well either at home or in the workplace will have that 

used against them on the issue of whether they have civil rights 

protections. 

This has dramatically affected people with psychiatric disabilities. So veterans that have post-traumatic stress disorder, depression, anxiety disorders—if they are able to control those well, they 

are likely to be found not to have disabilities for purposes of the 

ADA. 

It can also affect people with brain injuries. Again, if they are 

able to manage their disabilities and function well at home and at 

work, lots of courts are likely to interpret what the Supreme Court 

has done in a way that leaves them out. I would argue that would 

be true even if we fix the mitigating measures issue. This issue is 

bigger than simply fixing the mitigating measures. 

I agree with Professor Burgdorf that Carey McClure’s situation 

would not be addressed by simply fixing mitigating measures. It 

was the Toyota v. Williams decision that really severely restricted 

what constitutes a substantial limitation and a major life activity. 

The court said that they had to be activities that were of central 

importance to most people’s daily lives. That was invented by the 

65

court. That was not the standard from Congress. It was not the 

standard under the Rehab Act. 

So again, veterans coming back—we want them to have full lives. 

We want them to participate fully in all aspects of society, and we 

want them to have civil rights protections if they experience discrimination. The veterans who are functioning at the highest level 

are the ones who are most at risk of not having civil rights protections under the ADA. 

Mr. LOEBSACK. Yes, Mr. Burgdorf? 

Mr. BURGDORF. The only thing I would add is that win or lose, 

the focus is on the wrong thing. These people with these conditions 

are going to have to submit themselves to an inquisition into the 

details of their disorders. When they argue that they are being discriminated against—the employer said that this is significant 

enough that I won’t let you have the job, or I am going to fire you. 

Focusing on the details of their condition is invasive, unnecessary, 

and it is the wrong question. 

Mr. LOEBSACK. In just the little bit of time left. I mean obviously 

it is difficult enough to serve ordinary folks who don’t go off and 

fight for our country to be going through this process. I think it is 

far worse for those who are putting their lives on the line to come 

back and face these kinds or problems. 

Thank you very much for your response. I appreciate it, and I 

yield back the rest of my time. Thank you. 

Mr. ANDREWS. Thank you. Mr. Sarbanes. 

Mr. SARBANES. Thank you, Mr. Chairman, and welcome to the 

panel. This is fascinating. Welcome, Mr. Imparato. We have survived a number of piano recitals together. 

I am just fascinated by the court’s mischief in this area, and how 

they have managed a 180-degree turnabout in terms of what was 

intended with the original legislation. I view the removal of the 

‘‘substantial limitation’’ component, the definition, as trying to neutralize that opportunity for mischief in some ways and widen the 

ledge of protection, again, in ways it can’t be chipped away at so 

much that it just completely gives way. 

I assume that once that component is removed, the ‘‘substantial 

limitation’’ piece of it—that the court will set to work on the 

threshold definition of ‘‘impairment.’’ I would be curious, Dr. 

Burgdorf, on what you think they will do there. And then if you 

could expand beyond and take me through the chipped tooth scenario, so I can understand how much that is a red herring, which 

I view it as, or not. I mean, how does the chipped tooth case get 

started, and how does it proceed along the line? 

Mr. BURGDORF. What none of us has mentioned today is that 

H.R. 3195 adopts a definition of ‘‘impairment’’ that is based upon 

existing regulations that as far as I know, no one on either side of 

any issue has argued is not valid. It goes back to the original section 504 regulations. It requires a physiological disorder, which is 

medical terminology. It is not—I hesitate to disagree with my 

friend, Mr. Fram—but it doesn’t apply to things like baldness. I 

would think a person would have an incredibly hard time arguing 

that a chipped tooth is a disorder, any more than my ugly face is 

an disorder. 

66

These are attributes of people. They are not disorders. And there 

is no precedent anywhere that I have ever heard of, and I have 

written my big fat book about the meaning of the definition of ‘‘disability,’’ too, and I have never heard of a chipped tooth case. I don’t 

think that is a valid concern. I think maybe Mr. Fram should consider being a law professor, because we spend a lot of time dreaming up weird hypotheticals. I think that that is all this is. It is a 

red herring. 

In fact, many of the examples that are used go toward the same 

issue, which is that people have to have an impairment. That is defined. And if people want a reasonable accommodation, they have 

to show that the impairment prevents them from doing a job task. 

That is what the EEOC regulations have always said. Reasonable 

accommodation is not a wish list for people with disabilities. It is 

designed for a purpose. It is to remove something that is keeping 

that person from performing a job. A person with a cough is ordinarily not going to be able to show that. 

The bigger problem is that employers get to pick what they think 

is serious, and then throw people out of the workplace. At that 

point, we would like to say they have discriminated against a person. That person is entitled to file a claim. They may not win the 

claim, but they can file the claim. That is what H.R. 3195 does, and 

I am very comfortable in saying that it is not going to lead to all 

these horrible weird consequences. 

Mr. SARBANES. Do you want to respond to that? 

Mr. FRAM. I think it is just not correct. ‘‘Impairment’’ is very 

broad. I have cited cases in the written testimony where courts 

have said things like a sprained knee, erectile dysfunction, tennis 

elbow—all of these things are impairments. What keeps them from 

being covered disabilities is that they don’t substantially limit 

major life activities. 

I would also disagree with Mr. Imparato that major life activity 

has been a great problem, because courts have been very, very 

broad in terms of what our life’s major activities are, including 

things like sex, which courts have said are major life activities. So 

it doesn’t have to relate to the job. 

Mr. SARBANES. In that case, in the chipped tooth case, does litigation begin with an employer discriminating based on the chipped 

tooth? That is what I am asking. 

Mr. FRAM. I don’t think it would begin with that. It would be if 

the person says ‘‘I want time off,’’ and I am entitled to time off 

under federal law, to go get my tooth fixed. 

Mr. SARBANES. It just strikes me that those are implausible 

starting points for the litigation that you are raising the specter of. 

I have run out of time. I just wanted to say to you, Mr. McClure, 

thank you for your testimony. I loved your quote where you said 

that the reasonable accommodation that could have been given to 

you would have simply been to put you to work. So stick with it. 

Thank you. 

Mr. ANDREWS. Thank you, Mr. Sarbanes. 

The chair is pleased to recognize my friend from New Jersey, Mr. 

Payne, for 5 minutes. 

Mr. PAYNE. Thank you very much. 

67

Let me thank the panel for coming. I had the opportunity to be 

involved when the original ADA legislation was passed, and went 

around with Justin Dart. He was really quite a person. He invited 

the committee to Houston, Texas in the late 1980s. It was interesting, as you know, Houston has a large number of disabled people because the land is relatively flat and in the old days before 

mechanized wheel chairs, it made it a lot easier. The weather was 

better. You didn’t have snow. So there were a lot of things that 

made it more of a natural place where people with a disability 

would go. 

But it was interesting—Justin was very clever. He invited the 

committee to a baseball game, the Houston Astros or something, 

and of course you would probably have a violation today—the ticket 

only cost about $10, but you know, with the new laws you can’t 

take a ticket. Anyhow, what he did, though, was we went to the 

area where he got tickets for people that he knew, and it was in 

the handicapped section. I think he did it cleverly because it was 

the worst place in the stadium. It was stuck up somewhere under 

some beams where you couldn’t even sit straight and you couldn’t 

hardly see the field. It was just a horrible situation. 

However, evidently, you know, when people did public accommodations, they made it, well, let us throw this little space up in 

the corner in the dark in the back for those people, you know, and 

they ought to be glad we got a little place. So I think it was a very 

interesting, subtle way that he had to do this thing. 

The other thing I remember clearly was, you know, some of the, 

particularly the Greyhound Bus Company, said, oh, we are going 

out of business and there won’t be another Greyhound bus that will 

be able to stay on the road because the cost is going to be enormous 

and we can’t afford it and all that. Of course, you know, Greyhound 

buses kept running ever since. I don’t know if they are still running, but ADA certainly did not put them out of business. 

And also this question about the ramp, when people said, ‘‘we 

will try to do a ramp if we can.’’ This was talked about. The sky 

was falling or businesses were going out of business—we can’t afford to do it. And you found that the average ramp at a little place, 

at that time, it cost about $50 to put in. 

So I think that we find ourselves creating much more of a 

hysteria when we try to correct injustices than it is really worth. 

I would hope that we—and I know Mr. McKeon talked about opening up and people with real disabilities won’t be able to be serviced 

because you are going to have so many additional folks, so that is 

why we shouldn’t do this. Well, I think that water seeks its own 

level. I think that if we make the adjustments, we will be able to 

handle it like we did before. If we need more resources, then we 

should simply go about getting more resources. 

I just would like to once again commend you, Mr. McClure, for 

coming and telling us your story. In your opinion, do you think you 

could have done the job just as well as any other electrician? 

Mr. MCCLURE. I was doing the work when I went there, and I 

was doing the work after I left there. 

Mr. PAYNE. As a matter of fact, I have noticed in some instances 

that working with some people I worked with, I actually was sort 

of a plant director at a small plant. We had about 40 employees. 

68

So the forklift operator was deaf, so they said, ‘‘you can’t hire Leon. 

You know, he can’t hear.’’ I said, ‘‘well, he can drive the forklift all 

right, and he is very careful. It is going to be up to the employees, 

as they should anyway, to be sure that they observe the safety regulations.’’ If you back up, it makes noise. If you go forward, you can 

see it. 

And don’t you know that our record on safety so far as the forklift was better than it was ever because everyone knew that, you 

know, many times people will yell at the forklift operator to say 

‘‘hey, I am here’’ or something. So since they knew that Leon 

couldn’t hear, they had to make sure that they were out of the way. 

And everybody was extra careful because you couldn’t say, ‘‘well, 

he didn’t hear me.’’ It worked out perfectly. We had the best safety 

record. He did the job fantastically. 

So if you work with people that have disabilities, I think that you 

find, in my opinion, that you even get an employee who really puts 

more into the effort. They work hard. They really do, in my opinion, more to show that they are just as equal as a person without 

a disability. So I think it was General Motors’ loss certainly. 

I guess I didn’t really get a chance to ask my question, but I did 

want to reflect on that. 

Thank you very much, Mr. Chairman. 

Mr. ANDREWS. Thank you, Mr. Payne. 

The chair recognizes the gentleman from South Carolina, Mr. 

Wilson, for 5 minutes. 

Mr. WILSON. Thank you, Mr. Chairman. 

Thank all of you for being here today. 

I particularly am happy to receive additional information about 

the Americans with Disabilities Act. A dear friend of mine, actually 

my campaign chairman, Landon Whitehead, was present at the 

White House when the bill was signed. He has been a champion 

in our state for persons with head injuries. So over the years, I am 

really grateful for what has been done and can be done. 

Additionally, my late brother-in-law was a victim of a sniper at 

Okinawa, and was in a wheelchair for the balance of his life. I 

know it would have been so wonderful if he could have had the 

benefits that have come legitimately from this law. I thank all of 

you for being here. 

Mr. Fram, a question for you. Many advocates have argued that 

claims of discrimination under the ADA should be treated exactly 

the same as, say, claims of race or sex discrimination under Title 

VII, or claims of age discrimination under the Age Discrimination 

in Employment Act. That notion has appeal, particularly if the 

ADA is identical in scope to Title VII and the Age Discrimination 

Act. Is that the case? If not, can you tell us how does the ADA differ from other civil rights laws? 

Mr. FRAM. Well, that is exactly the problem that I have been 

pointing out, is that the ADA is different from Title VII, not in the 

general discrimination part, because it would be easy if you just 

said you can’t discriminate against somebody because they have an 

impairment. That is easy. The hard part is that the ADA also requires reasonable accommodation. 

So the ADA puts a federal requirement on an employer to reasonably accommodate, unless it causes an undue hardship. In this 

69

case, it would put that requirement on an employer who has somebody who has—I will get away from the chipped tooth example and 

use the flu. Nobody could dispute the flu is a disorder. 

So do you have to reasonably accommodate somebody with the 

flu? Would you have to provide a modified work station for somebody with a sprained ankle? Of course you have to provide a modified work station for somebody who has paraplegia, but for somebody with a sprained ankle—that would turn this into a federal requirement. 

The other things that it does—and I won’t repeat myself with the 

medical examinations and inquiries—but that is a really serious 

part, that it prohibits disability-related questions of employees unless they are specifically about the job. Title VII doesn’t do that. 

ADA also has certain insurance provisions. The EEOC has a 

guidance dealing with disability-based distinctions in insurance 

provisions. If disability equals impairment, that means a lot of policies that, for example, might differentiate between dental coverage 

and medical coverage, could be suspect under this law. So there is 

a lot of additional requirements that ADA imposes that Title VII 

does not. 

Mr. WILSON. Additionally, how does ADA address issues of safety 

in the workplace? Do you have any concern of how H.R. 3195 might 

change that treatment? 

Mr. FRAM. Well, the ADA has a provision dealing with direct 

threat—that an employer can only screen someone out if, because 

of his disability, he poses a direct threat, a significant risk of substantial harm. The problem that has come up in the courts over the 

past—really over the past year—has dealt with conduct issues and 

whether an employer can enforce its conduct rules. 

Specifically, there has been—even conduct rules concerning safety—there was a case out in the Ninth Circuit, which is generally 

the West Coast, that dealt with an employee who had bipolar disorder, who in the words of the court, the Ninth Circuit, said had 

engaged in violent misconduct in the workplace. This is a Ninth 

Circuit case. We are not talking a lower-level case. And the court 

said you had to provide reasonable accommodation to her. 

What is the accommodation you are supposed to give to somebody who engages in violent misconduct in the workplace? So in 

that sense, I think the ADA was not intended to interfere with an 

employer’s right to have conduct rules concerning safety, but the 

way it has been interpreted by some courts, in the same way that 

we have been talking about some of the really conservative decisions, there are some decisions like this that say you might have 

to accommodate violent misconduct. That, in my opinion, would 

need to be corrected. 

Mr. WILSON. Again, I thank all of you for being here, and I yield 

the balance of my time. 

Mr. ANDREWS. I thank the gentleman for yielding. 

The chair recognizes the gentlewoman, the chairperson of the 

Workforce Standards Subcommittee, Ms. Woolsey, for 5 minutes. 

Ms. WOOLSEY. Thank you, Mr. Andrews. 

First of all, I would like to recognize that Dr. King Jordan from 

Gallaudet University is here with us today. 

Mr. ANDREWS. Welcome, doctor. 

70

Ms. WOOLSEY. He brought reasonable accommodations, as you 

can see—his interpreters, and how important that is in order for 

him to do what he does, so he can hear what we are doing today. 

So there is a good example. 

You know, I am really thankful that we have brains like yours, 

Chairman Andrews, and many of the other brains that have spoken before me today that will talk about H.R. 3195 and the details, 

because I get all caught up in statements like chipped teeth and 

baldness and having the flu. I am a 20-year human resources professional. A person that has the flu is accommodated. You don’t 

want them in the factory or in the workplace, period. That is 

human relations. 

Yes, indeed, every company has problem employees who try to 

take advantage of everything. That is the exception. It is not the 

rule, and it is something as a manager, a supervisor, a human resources person, you deal with. It has nothing to do with ADA. And 

when you, Mr. Fram, talked about accommodating baldness, that 

did it for me. [Laughter.] 

What does—I mean, you too are going to be middle-aged someday, men—what you do is, you know, you start losing your hair. 

What in the world would that have to do with anybody’s job and 

any kind of accommodations? I mean, that threw me for a loop. 

That was a horrible example. If you are willing to tell me what you 

think would be a reasonable accommodation that would relate to 

your sitting here talking to us and being an expert in your own 

way, I would be glad to hear it, but I don’t get it. 

Mr. FRAM. Well, I completely agree with you that it should have 

nothing to do with the ADA, because the ADA should cover people 

with serious conditions, not somebody with a sprained ankle. Now, 

in the workplace, of course, I would never ask for accommodation 

because of my hair impairment. 

Ms. WOOLSEY. I hope not. [Laughter.] 

Mr. FRAM. Some people find it nice. [Laughter.] 

Mr. ANDREWS. We are not going any further on that. [Laughter.] 

Mr. FRAM. The sprained ankle, though, if somebody were to say, 

‘‘I want a modified work station because of my sprained ankle,’’ the 

question would be: Is that person entitled to this as a federal mandate, entitled to a modified work station because of a sprained 

ankle? And that can’t be what Congress intended. 

Certainly, it intended to cover people who have paraplegia or a 

veteran returning home with no legs. Of course, it is intended to 

cover that. But is it intended to cover somebody with a sprained 

ankle or the flu? 

Ms. WOOLSEY. Well, I am going to let Dr. Burgdorf, Mr. McClure, 

and Mr. Imparato answer that question. What does that mean for 

our discussion today? Let me start with you, Mr. Imparato. 

Mr. IMPARATO. Thank you. 

I think Professor Burgdorf did a good job of explaining how the 

reasonable accommodation analysis happens under the ADA. The 

employee is not entitled to time off for anything they want time off 

for. They are entitled to an accommodation that enables them to 

do the essential functions of the job. So getting time off for hair 

treatment is not going to enable you to do the essential functions 

of the job. 

71

I just briefly want to also touch on this issue about the ADA’s 

protections on health disparities. The EEOC guidance that David 

Fram cited was a 1993 guidance. We have case law from 1999 

where the courts have very narrowly interpreted what the ADA requires in the area of health care. They said it is okay to have a 

separate cap for AIDS-related illnesses than you have for other illnesses. They said it is okay to have different coverage for mental 

disabilities around disability insurance. They said it is okay not to 

cover hearing aids. 

All those have been challenged under the ADA and failed. So I 

don’t see how having a broader definition is somehow going to invite a lot more health disparity cases because we are not successful 

under the current law with the cases that have gone forward. 

Ms. WOOLSEY. Mr. McClure, would you like to—I mean, a 

sprained ankle? 

Mr. MCCLURE. I have worked with a sprained ankle. [Laughter.] 

Ms. WOOLSEY. I will bet you have. 

Mr. MCCLURE. Your tolerance from the pain of a sprained ankle 

is nothing to compare with the pain I am in all the time. 

Ms. WOOLSEY. Right. 

Mr. MCCLURE. I would like to note that I agree with you fully. 

Most Americans are not going to try to do the things they are saying, with chipped teeth, flu. Most of us want to work just like everybody else. Thank you. 

Ms. WOOLSEY. Thank you. 

Dr. Burgdorf? 

Can he, Chairman Andrews? 

Mr. ANDREWS. Yes, very briefly. Thank you. 

Mr. BURGDORF. The issue is in the wording that Mr. Fram used, 

of ‘‘serious’’ and who decides that it is serious. The ADA has a 

standard for reasonable accommodation. A person with a sprained 

ankle or any other thing that we might think of as minor will have 

to show that it interferes with the performance of an essential job 

function. If it does, then it is not that the person gets whatever he 

or she wants. It is that employers then enter into a dialogue about 

‘‘what do I need to do.’’

It might be the employer says the accommodation is go home. It 

might be the employer says ‘‘put some ice on it and get back to 

work.’’ There are any number of possible accommodations, and the 

employer gets to pick, unless they are not effective or unreasonable. The person with the disability has to accept it. 

Mr. ANDREWS. Thank you very much. 

The gentlelady’s time has expired. 

The chair recognizes the gentlelady from Hawaii, Ms. Hirono, for 

5 minutes. 

Ms. HIRONO. Thank you, Mr. Chairman. 

I would like to thank the panel. 

I agree that the ADA needs remedial legislation and should be 

broadly interpreted to support the group of people that it was intended to help. I think in these cases, whoever bears the initial 

burden of proof often is the person who gets to go forward and 

proves his or her case. It seems as though this initial burden of 

having to show substantial limitation pretty much kicks out so 

many people from ever moving forward that we don’t even get to 

72

the question of reasonable accommodation or whether or not that 

person could do the job. 

So what this bill does is to eliminate that initial burden, and 

then, as Mr. Fram says, I take it that we then get to this question 

of whether or not the person could do the job, and it shifts the burden to the employer. 

I would like to ask Mr. Imparato and Mr. Burgdorf whether you 

believe that this burden-shifting is an undue burden or somehow 

an unfair burden on the employers. 

Mr. IMPARATO. Well, thank you for that question. I think one of 

the things that Mr. Fram has argued and a number of employers 

have argued is that this statute is somehow changing an employee’s burden to show that they are qualified, that they meet the 

basic functions of the position. That was not the intent of the legislation. 

Title VII does not require you—it doesn’t say in the statute that 

you have to be a qualified woman or a qualified minority in order 

to have protection under Title VII. But it has been read—the prima 

facie case under Title VII has been read to include that you have 

to show you meet the basic qualifications. 

Our intent with ADA Restoration is to follow that. We took out 

the word ‘‘qualified’’ because it didn’t appear in any other civil 

rights law, but the intent is to have the same kind of burden-shifting that you would have under Title VII. And that seems to work 

fine for employers. 

So the answer to your question is no, I don’t think this would 

create an unfair burden for employers. 

Mr. BURGDORF. At the time the ADA was enacted, and this is reflected in some of the committee reports, there were cases under 

Section 504 dealing with the issue of burden of proof. What they 

essentially said is that the person with the disability has to come 

forward first with evidence that he or she satisfies the basic announced job qualifications. You may have to have a degree. You 

may have to have a license, a driver’s license if the job involves 

driving. 

A person with a disability comes forward, shows that he or she 

meets the employer’s announced qualification standards, then the 

burden shifts and the employer can argue, ‘‘well, despite that, you 

can’t really do the job.’’ Then ultimately the burden would be on 

the employer. The person with the disability, meeting the announced criteria, should be presumed okay until, if and when the 

employer comes back and proves disqualification. 

That has gotten quite muddled in the interim. It appears that 

people with disabilities are going to have to prove they meet essential job functions when the employer knows what the essential job 

functions are, and the factors that go into determining job functions, as specified in the regs, are all things the employer knows. 

How much time has to be spent on this; what will happen if this 

function isn’t performed—those are all things within the expertise 

of the employer. 

So H.R. 3195 moves the word ‘‘qualified’’ out of the first part of 

the statute. It leaves it in the statute. In fact, it is in there three 

times. This will take out one. It is specifically stated as a defense 

on employers. Therefore, ultimately if the employer wants to argue 

73

that you can’t do the job, the employer is going to have to show 

that, despite the person having already shown that he or she meets 

the qualification standards that were announced. 

Ms. HIRONO. So this bill would require an initial prima facie 

showing by the plaintiff, and then the burden shifts to the employer to show that the person is not qualified. So it is really a burden-shifting kind of thing that the initial burden is still on the 

plaintiff, and then it shifts to the employer. Is that how you are 

interpreting this bill? 

Mr. BURGDORF. That is how I interpret it. 

Ms. HIRONO. Okay. Thank you. 

I yield back the rest of my time. 

Mr. ANDREWS. I thank the gentlelady for her questions. 

At this time, I would yield to the ranking member of the subcommittee for any concluding remarks he may have to make, Mr. 

Kline. 

Mr. KLINE. Thank you, Mr. Chairman. 

Again, thanks to all for being here today, and Mr. McClure, for 

your touching personal testimony. I couldn’t help but notice in the 

last series of questions that the lawyers at the table, we had two 

nodding their heads up and down and one shaking his head left 

and right. So this battle of lawyers is very common here, and in 

fact on this committee. 

What we want to do as we look to make sure that Mr. McClure—

his case, his issue—is adequately covered here, that we do this in 

a way that doesn’t dilute the act itself in such a way that it works 

counter to what we would like to see done. We would like to get 

to the point where we have all lawyer heads nodding. It may never 

happen, but we would like to get a lot closer to that than I think 

we are here. 

Again, I want to thank the witnesses for their testimony. We are 

looking forward to the tweaks or whatever it takes to get some 

more of those heads nodding. 

I yield back. 

Mr. ANDREWS. Mr. Kline, thank you. 

We thank all of our colleagues. 

I want to extend my appreciation to each of the witnesses. Mr. 

Imparato and Mr. Fram and Dr. Burgdorf I think really gave us 

excellent, well-reasoned arguments that the committee will take 

into deliberation. 

And Mr. McClure, I just want to say to you how important what 

you have done today is. I think there is a universal conclusion here 

that what happened to you is unfair and wrong. And unfortunately 

because it has already happened, there is not much that the committee can do to address your specific case because that is the way 

our system works. But you have done something that exceeds your 

own self-interest and you have done something very important for 

the men and women of your country by calling your case before us 

so we can fix it, so that what happened to you does not happen to 

other people. 

I think the way to fix it—I think the record is pretty clear that 

the court has confused the question of who has a disability with the 

question of what should be done in response to that disability. 

When the court has identified circumstances where it is uncomfortVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
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able in the kind of accommodations it thinks might happen, it has 

chosen to deal with the situation by defining out of the definition 

of ‘‘disability’’ people who ought to be protected. I think that is a 

core problem here that we have to address, and I believe that Mr. 

Hoyer and Mr. Sensenbrenner’s bill does. 

Mr. McClure said a lot of very compelling things today, but I 

think the best thing, Mr. McClure, that you said was, ‘‘most people 

just want to work.’’ It is not about battle of the lawyers. I am also 

appalled by battle of the lawyers. It is contrary to everything I believe in. It is not about statutory interpretation. It is about a decent man or woman who wants to earn a paycheck for his or her 

family and do the job. 

I think what we always have to keep in mind here, as Mr. Kline 

just said, is how would anything we do affect you, Mr. McClure, 

and people like you, but also a broader question. When Mr. 

McClure was denied his rightful opportunity to excel in his job, it 

is not just that he suffered or that, frankly, General Motors suffered. The whole economy suffered because a talented, hard-working person was left out of the process. 

You don’t win when you don’t put your best people on the field. 

It is something that the New York Giants will probably find out 

on Sunday. [Laughter.] 

Sorry, for all my fellow New Jersey friends. 

But if you don’t put your best people on the field, you don’t win. 

I think one of the main purposes of the Americans with Disabilities 

Act is to make sure that we always put our best team on the field. 

And we do not say, well, you are okay, but you have some condition 

that makes us look at you a little bit differently, and we don’t want 

your talent. In a global competition as fierce as the one in which 

we find ourselves, we can’t afford to say to any person that we can 

leave their talent out. 

So Mr. McClure, we are sorry that your talents were left out. You 

can tell those grandchildren I know that you are so proud of that 

their grandfather did something very significant by coming here 

and telling his story and helping convince us, which I think you 

have done, to work together and solve this problem. 

So we thank everyone for their participation. Members will have 

7 days to submit additional materials for the hearing record. Any 

member who wishes to submit a follow-up question in writing to 

the witnesses should coordinate with the majority staff also within 

7 days. 

Again, we thank everyone for their participation. Without objection, the hearing is adjourned. 

[The statement of Mr. Courtney follows:]

Prepared Statement of Hon. Joe Courtney, a Representative in Congress 

From the State of Connecticut 

Chairman Miller, Representative McKeon—thank you for convening this hearing 

today. Majority Leader Hoyer, I want to thank you for bringing this issue forward. 

I know that you have been involved with the ADA for nearly 20 years, and you were 

instrumental in working to initially craft it in a bipartisan and bicameral manner. 

Ultimately, the intent of the ADA has been restrained; instead, the courts have 

limited its scope. Too many people are being denied their civil rights and denied coverage intended under the Act. 

Most people never reach the threshold of whether they have been discriminated 

against; rather they are being forced to prove they are truly disabled. 

75

It is not simply an injustice; it also has economic consequences. It impacts a person’s ability to earn a living, contribute to one’s family, save for retirement and attend college. 

I have heard from an organization established at Yale—the Center for Dyslexia 

and Creativity. A dedicated group of individuals led by Dr Sally Shaywitz are working on the issue of Dydlexia and how it impacts education and employment. Former 

Congressman Sam Gejdenson, Former FCC Chairman Reed Hundt and Steven 

Spielberg have joined her in this quest. I know the Chairman and Representative 

Andrews listened to her passionate testimony linking brain function mapping and 

dyslexia. 

Those with dyslexia may sometimes be granted additional testing time in normal 

educational settings but they are rarely given time when they need to take medical, 

law, graduate or college entrance exams which all impact their future employment 

and professional lives. 

And so—thank you for convening this important hearing. I cosponsored this important civil rights bill. And I ask unanimous consent to enter testimony by Dr. 

Shaywitz into the Record. 

[The statement of Dr. Shaywitz follows:]

Prepared Statement of Dr. Sally Shaywitz, Audrey G. Ratner Professor of 

Learning Development, Yale University School of Medicine 

I am Dr. Sally Shaywitz, the Audrey G. Ratner Professor of Learning Development at the Yale University School of Medicine where I am Co-Director of the Yale 

Center for the Study of Learning, Reading and Attention, and, of the newly formed 

Yale Center for Dyslexia & Creativity. I am a member of the Institute of Medicine 

of the National Academy of Sciences and serve on the National Board of the Institute of Educational Sciences. 

A developmental pediatrician by training, I became concerned with the devastating impact of a reading disability on otherwise highly intelligent, and often 

gifted boys and girls who experienced an unexpected difficulty learning to read. Although dyslexia is often referred to as a ‘‘hidden disability,’’ the negative impact of 

the disorder on every aspect of a person’s life became readily apparent as I followed 

these children and young adults and their families over time. And so I became deeply concerned about the impact of this disability on the lives of the children and resolved to learn more about this puzzling disorder that was stealing the joy of childhood from so many children, and worse, not allowing them as young adults to realize their often very high potential. 

Over the past two decades, my colleagues and I have investigated the epidemiology, cognitive mechanisms, and most recently, the neurobiological basis of dyslexia. At Yale, I see or review the requests of students at all levels of the University, 

undergraduate, graduate, and professional schools who request accommodations for 

a learning disability. 

I am here today because I am concerned that the current interpretations of the 

ADA are preventing otherwise deserving young men and women from entering college, graduate and professional schools, and then, professions—all of which are dependent on how well a student scores on the pervasive gate-keeper, high stakes examinations, for example, SAT; LSAT, MCAT, USMLE, the Bar Exam, certifying and 

licensing examinations for every medical specialty, nursing, financial services and 

many more. I have personally seen increasing numbers of deserving young men and 

women with clear histories of dyslexia, who with incredible effort and determination 

and reasonable accommodations, mostly the provision of additional time on exams, 

succeed in school but, who are then turned down for accommodations by standardized testing agencies and boards precisely because they have succeeded and their 

performance is compared to a standard of the average person. 

Clearly, using comparison to the average person for determination of a learning 

disability violates the fundamental tenets of a learning disability which is based on 

an intra-individual disparity, that is, a disparity existing within a person—between 

a person’s intellectual ability and his/her achievement, and not on how a person 

compares to an external measure—the average person. By judging a learning disability by comparison to the average person and not based on the individual’s own 

potential, all brighter than average learning disabled students are summarily excluded from receiving the accommodations they require to achieve their potential. 

In practical terms, this means not being admitted to law, medical or nursing school 

and these professions because of artificially low scores on high stakes exams so that 

the exam reflects that person’s disability rather than his or her ability. Without acVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
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commodations, these tests cannot and do not reflect the LD person’s knowledge or 

aptitude. The effect is for the average person standard to restrict the rights of bright 

LD students and set limits, essentially, a ceiling on their future jobs and careers. 

The past decade has seen an increase in the understanding of the nature of learning disabilities such as dyslexia, by far the most common LD, and, an increase in 

the provision of educational services, both instructional and accommodations that 

allow students to succeed and begin on the road to realizing their potential. And 

so, it is particularly cruel that these extraordinarily hardworking students, who are 

the original 24/7 folks and are at the verge of realizing their potential and their 

dreams, are artificially prevented from doing so. These young men and women have 

climbed the mountain, and now, when they are about to reach the peak, suddenly 

they are knocked down and prevented from reaching their earned and deserving 

goal. Time after time, I have witnessed LD students turned down and penalized for 

their hard work just because they have succeeded, with the interpretation that academic success (achieved with accommodations) precludes a diagnosis of LD and eligibility for accommodations under the ADA. As a result, students are placed in a 

Kafkaesque Catch-22: they succeed because of their intellect, hard work, and provision of accommodations which they received only because they are LD. However, for 

the very success in school that they have achieved and that makes them eligible for 

further study, particularly in graduate and professional schools, and for certification 

and licensure, they are penalized and denied accommodations on gate-keeper exams 

(e.g., GMAT, MCAT, USMLE, LSAT, bar exam) preventing access to professions. 

A major and important difference between the ‘‘average’’ person and the LD person is that the provision of accommodations will have a significant impact on the 

LD person’s performance, but not the average person’s performance. We often hear, 

‘‘wouldn’t everyone benefit if they had extra-time?’’ The answer is a clear and unequivocal no! Results of scientific studies now provide undeniable evidence that only 

LD students increase their scores significantly when provided with extra-time, and 

what’s more there is now definitive neurobiological evidence of the need for extratime by dyslexic students. 

Scientific studies comparing the performance of LD and nonLD college students 

with and without extra-time demonstrate, for example, that while nonLD students 

score at the 82nd percentile without extra-time, they score at the 83rd percentile 

with additional time. Scores of nonLD students remain essentially unchanged; providing extra-time to nonLD students makes virtually no difference. 

What about LD students? Here we see a significant and substantial increase in 

scores, evidence of the difference extra-time makes for LD students. In this study, 

LD college students scored in the 13th percentile without extra-time, and with 

extra-time, scores increased substantially from the 13th percentile to the 76th percentile; a significant difference. Extra-time for LD students levels the playing field, 

precisely reflecting the intentions of the ADA. 

Today, in 2008, it is possible to show you actual brain images obtained during 

functional magnetic resonance imaging (fMRI) that provide clear and compelling 

neurobiological evidence of the absolute need for extra-time for dyslexic students. 

fMRI allows us to literally peer into the living brain as a person reads and we can 

see which brain systems are used by typical or average readers in contrast to 

dyslexic readers. 

What have we learned? Typical readers light up—activate three neural systems 

on the left side of the brain, one in the front of the brain and two in the back. One 

of these systems, we and others have shown, is essential for rapid, fluent automatic 

reading that is effortless. In dyslexic readers, this neural circuit (aptly named the 

wordform area) that is responsible for automatic, rapid reading remains silent, fails 

to activate preventing these impaired readers from reading fluently, that is, rapidly 

and automatically. Dyslexic readers compensate by developing other systems in 

other areas of the brain; however, these systems provide only partial compensation. 

They allow the dyslexic reader to read relatively accurately, but not automatically, 

that is, rapidly. Consequently dyslexic readers remain slow, nonautomatic readers 

across their lifetime. Thus, with great effort and effective reading instruction, 

dyslexics can learn to read words accurately, but not rapidly. In contrast, peers 

learn to read both accurately and automatically (rapidly). Slow, effortful reading 

persists and characterizes dyslexic readers at all ages. As a result of this 

neurobiological disruption, dyslexics require extra-time in order to demonstrate 

their knowledge and to level the playing field. Without protection of the ADA (i.e., 

a denial of additional time), a dyslexic person performs below his/her ability and the 

high stakes test becomes a measure of a dyslexic person’s disability bringing with 

the denial a barrier impeding access to jobs and careers. Critically, brain imaging 

has made a hidden disability and its consequences visible. There now exists a neuVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK
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ral signature for dyslexia and scientific proof of the need for extra-time for dyslexic 

students. 

From a neuroscience perspective, dyslexic readers show a persistent disruption in 

the specific neural system for rapid, automatic reading; nondyslexic readers have an 

intact system. This is demonstrated by the figures below:

Neural system (word form area, shown in yellow) for automatic, rapid reading is 

impaired in dyslexia; other areas provide compensation for accuracy, but not for 

speed.

And so, we now know that if you are a non-dyslexic reader, you use the wordform area well, you look at a word and you’re on the express highway to reading. 

Look at the word and instantly you know it and can read it. But, if you are a 

dyslexic, that express route is blocked and you have to get off and take another anVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK

shay1.eps shay2.eps
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cillary, secondary ‘‘country’’ road—it’s circuitous, and it’s bumpy. And so its slower 

and you have to work a lot harder; it will get you to your destination but it takes 

a lot longer. Just as a diabetic requires insulin, a dyslexic has a physiologic need 

for extra-time. 

To summarize, the evidence is now clear; accommodations are critical to assure 

fairness and equity to students who are LD. Currently, standardized testing agencies are denying large numbers of dyslexic students extra time. This discriminatory 

practice has significant negative consequences for the futures of these students. 

Today, standardized tests are the gate-keeper to the future: access to college, graduate and professional study, job certification all share a dependence on performance 

on these high-stakes tests. 

Denial of accommodations to LD students represents particularly cruel discrimination, for it penalizes those with the most potential, those who have struggled 

throughout school, given up much of their childhood, worked the hardest to achieve 

academically and did so with provision of accommodations. And now these incredibly 

hardworking, deserving dyslexic students are being told because they have achieved 

academically, they are not eligible for protection of the ADA, closing the door on 

years of effort and dedication and preventing access to higher education and future 

jobs. 

Why should we care? I believe, and I think you will too, that denying LD students 

extra-time goes against the intent of the ADA, scientific evidence, and hurts not 

only the students, but harms our society as well through the loss of human capital 

that could contribute substantially to our nation’s well-being. 

I will leave you with one example. Dr. Toby Cosgrove is recognized as perhaps 

the finest cardiothoracic surgeon in the world; he led the Cleveland Clinic Department of Cardiothoracic Surgery to greatness, achieving number one status in US 

News & World Report’s rankings year after year. His over 20 patents have saved 

countless lives and given better lives to hundreds, if not thousands, of others. The 

frightening fact is that Toby Cosgrove came very close to never becoming a doctor. 

Dr. Cosgrove is dyslexic. 

When I visited with him and lectured with him at the Cleveland Clinic, I heard 

him speak movingly to the hushed crowd of his difficulties in school in learning to 

read and his memories of the tutors who tried to teach him to read. Reading remained a ‘‘big problem’’ for Dr. Cosgrove. For young Toby, college meant nonstop 

work. ‘‘All I did was study, even on weekends. While everyone else was partying or 

going to the movies or sports events, I packed my suitcase and left campus for home 

where I studied all weekend.’’ Reflecting his slow reading, standardized testing was 

a disaster for him, not at all reflecting his potential, but rather his dyslexia. A particular problem was the impact of his slow, nonautomatic reading on the Medical 

College Admissions Test, the MCAT. It seemed doubtful that Cosgrove would ever 

fulfill his dream of becoming a doctor. In fact, he was accepted at only one of the 

13 medical schools to which he applied, and rejected from 12 out of 13, because of 

the impact of his slow reading on the gate-keeper test that allows or bars access 

to medical school and to becoming a physician. 

The frightening thought is that not only would Toby Cosgrove have been denied 

the dream he worked so hard to achieve; society would have been deprived of the 

substantial, lasting benefits of his inventions and patents that have saved so many 

lives and given so many people better lives. The question I leave you with is how 

many other potential Toby Cosgroves are we in danger of losing because of denial 

of proven to be necessary accommodations for dyslexic students? Let us weigh, 

would it be worth it to give this man extra-time not to lose him and his contributions? Thank you. 

[The statement of Mr. Fortun ̃ o follows:]

Prepared Statement of Hon. Luis G. Fortun ̃ o, a Representative in Congress 

From the Territory of Puerto Rico 

Chairman Miller, Ranking Member McKeon, I would like to thank you both for 

holding this critical hearing as we move towards reauthorization of the American 

with Disabilities Act. As the sole representative of 4 million U.S. citizens on the Island of Puerto Rico, it is my will that we come together today and find a way to 

settle our differences and ensure passage of this critical piece of legislation. Coming 

together is the only way to make sure we protect the civil rights of the sector of 

the population that needs us the most. 

During my years in Congress I have always been a strong advocate for the right 

of those with disabilities. In my district alone there are approximately nine hundred 

79

thousand U.S. citizens who suffer from an impediment, eighty percent of which are 

unemployed. Puerto Rico is losing out on the contributions these individuals have 

to offer to our society. The fact is that the reauthorization of this legislation would 

be a critical factor in changing these numbers for the better but only if amended. 

It is my belief that the current language of the bill is too broad and instead of protecting, it could hurt those it was originally intended to protect. 

I would like to express my support for the reauthorization of this bill and trust 

that through this hearing and through open dialogue we will find a consensus that 

will ultimately benefit our constituents with disabilities. 

Thank you Chairman Miller and Ranking Member McKeon for allowing me to 

speak about this critical issue. 

[The statement of Ms. Woolsey follows:]

Prepared Statement of Hon. Lynn C. Woolsey, a Representative in Congress 

From the State of California 

Everyone deserves equal access and opportunity to live, learn, and work, without 

fear that they will somehow be denied that opportunity because of the color of their 

skin or whether they have a disability. Since the passage of the Americans with Disabilities Act (ADA) in 1991, we have worked to end discrimination. However, we 

still have a long way go to ensure that all disabled Americans are treated fairly. 

No person with a disability should be prevented from pursuing the job of his or 

her choice if fully capable of doing the work required of them. A person with a disability shouldn’t be punished for trying to find ways to manage his or her disability 

in order to live the best possible life. However, because of the way the courts have 

defined disability, employers have been allowed to discriminate against some disabled employees. 

The ADA Restoration Act, H.R. 3195, would amend the ADA’s definition of disability to cover all the people Congress originally intended to protect and would prevent courts from disqualifying people from coverage under the law because of the 

narrow definition of a disability or for mitigating factors, such as eyeglasses and 

medication. The ADA was passed to ensure that all people with disabilities have 

equal access and opportunities and it is high time that we bring back its original 

intent. It’s a matter of doing what’s right. 

[Additional submissions of Mr. Andrews follow:] 

[The statement of the ACLU follows:]

Prepared Statement of the American Civil Liberties Union 

The American Civil Liberties Union (ACLU) applauds the House Education and 

Labor Committee for holding this hearing on the Americans with Disabilities Act 

(‘‘ADA’’) Restoration Act of 2007 and appreciates the opportunity to submit a statement for the record. The ACLU also wishes to thank Representatives Hoyer (D-MD) 

and Sensenbrenner (R-WI) and Chairman Miller (D-CA) for their important leadership in championing this key legislation. 

The ACLU is a nonpartisan public interest organization dedicated to protecting 

the constitutional rights of individuals. The ACLU consists of hundreds of thousands of members, activists, and 53 affiliates nationwide. The ACLU has pursued 

pioneering work in disability rights for over 35 years. A highlight in this long record 

was the ACLU’s leadership role in securing passage of the Americans with Disabilities Act (‘‘ADA’’) in 1990.1 In addition, the ACLU has participated in landmark disability litigation including Bragdon v. Abbott, 524 U.S. 624 (1998);2 Sutton v. United 

Airlines, Inc., 527 U.S. 471 (1999);3 Chevron, USA, Inc. v. Mario Echazabal, 122 S. 

Ct. 2045 (2002).4

In 1990 Congress passed the ADA with overwhelming bipartisan support, creating 

a landmark civil rights law that improved the lives of millions of people with disabilities. In passing the ADA, Congress advanced the goals of ensuring equal opportunity, full participation, independent living, and economic self-sufficiency for all 

people with disabilities.5 The purpose of the ADA was to ‘‘provide a clear and comprehensive national mandate for the elimination of discrimination’’ on the basis of 

disability, and ‘‘to provide clear, strong, consistent, enforceable standards’’ for addressing such discrimination.6

Unfortunately 17 years after enactment of the ADA, the promise of equal opportunity in employment has gone unfulfilled to many people with disabilities due to 

80

a series of U.S. Supreme Court decisions that have narrowed the definition of disability under the ADA contrary to Congressional intent. This has resulted in the exclusion of many persons whom Congress intended to protect including people with 

cancer, epilepsy, diabetes, hearing loss, multiple sclerosis, HIV infection, intellectual 

disabilities, post traumatic stress syndrome, and many other impairments. The 

ACLU believes that an individual has the right to be judged on the basis of her or 

his individual capabilities, not on the presumed characteristics and capabilities that 

others may attribute to those who share a particular impairment. The court decisions have created an unintended Catch-22 where individuals taking medication or 

using other mitigation measures to manage their condition may no longer qualify 

as ‘‘disabled’’ under the ADA. Thus those individuals diligently managing their condition may be denied reasonable accommodations or be terminated, without ever 

being able to present the merits of their case in court. 

The ACLU supports the ADA Restoration Act of 2007 (H.R. 3195) as a necessary 

fix to this Catch-22 problem. The ADA Restoration Act restores Congress’s original 

intent in extending discrimination protections to all people with disabilities, regardless of mitigating measures, who are discriminated against because of their disability. The ACLU encourages its passage in order to guarantee equal protection for 

all people, regardless of disability. 

ENDNOTES

1 Chai Feldblum, former legislative counsel with the ACLU, served as a lead legal advisor to 

the disability and civil rights communities in the drafting and negotiating of the ADA. 2The ACLU wrote an amicus brief in Bragdon which addressed whether individuals with 

asymptomatic HIV and AIDS were covered under the protections of the ADA. Available at http:/

/www.aclu.org/scotus/1997/22683lgl19980201.html. 3The ACLU wrote an amicus brief in Sutton, arguing that the ADA was intended to be applied broadly to protect individuals with disabilities from discrimination in the workplace. Available at http://www.aclu.org/scotus/1998/22639lgl19990222.html. 4The ACLU wrote an amicus brief in Echazabal, arguing that an employer violates the ADA 

when refusing to hire an individual on the basis of her or his disability. The ACLU further argued that allowing individuals to decide what risks—physical, social, or otherwise—she or he 

is willing to take is at the very core of a person’s civil rights. Available at http://www.aclu.org/

images/asset—upload—file411—21954.pdf. 5See 42 U.S.C. § 12101(a)(8). 

6See Americans with Disabilities Act § 2(b), 42 U.S.C. § 12101(b) (2007). 

[The statement of the Bazelon Center for Mental Health Law follows:]

January 29, 2008. 

Bazelon Center for Mental Health Law Urges Congress to Pass the 

Americans With Disabilities Restoration Act 

The Judge David L. Bazelon Center for Mental Health Law commends the House 

Education and Labor Committee for holding today’s hearing concerning a muchneeded measure—the Americans with Disabilities Restoration Act. This legislation 

is needed to correct federal courts’ misinterpretations of the ADA and ensure that 

the protections that Congress enacted in the ADA are in fact available for all people 

with disabilities. 

The Bazelon Center is a nonprofit organization that provides assistance and representation to individuals with mental disabilities. For three decades, the Center 

has engaged in policy advocacy and precedent-setting litigation that has opened up 

public schools, workplaces, housing and other opportunities for people with mental 

disabilities to participate in community life. 

Almost eighteen years ago, President George H.W. Bush signed the Americans 

with Disabilities Act into law. This landmark legislation was the first comprehensive national civil rights law for individuals with disabilities, intended by Congress 

as a broad mandate barring discrimination against all people with disabilities and 

ensuring access to the mainstream of American life. As he signed the law, President 

Bush stated: ‘‘Let the shameful walls of exclusion finally come tumbling down.’’

The ADA has had a tremendous impact on the lives of people with disabilities, 

opening up many doors that were previously closed and enabling them to participate 

fully in many aspects of life. The Supreme Court, however, has misconstrued the 

scope of the ADA’s protections and held that it covers a far narrower group of individuals than Congress intended. The Court’s decisions have created a ‘‘Catch 22’’ for 

people with disabilities: many have lost their jobs because of their disability, but 

their employers have successfully argued that these individuals are not disabled 

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enough to be protected by the ADA. This was not Congress’s intent in passing the 

ADA. 

We urge Congress to act promptly in passing this legislation to restore the rights 

of all Americans with disabilities to be free from unwarranted disability-based discrimination. 

Very truly yours, 

ROBERT BERNSTEIN, 

Executive Director. 

[The statement of the United Jewish Communities follows:]

January 28, 2008. 

Prepared Statement of the United Jewish Communities 

DEAR MEMBER OF CONGRESS: As concerned Jewish organizations committed to 

protecting the rights of people with disabilities, we urge Congress to pass the ADA 

Restoration Act of 2007 (H.R. 3195/S. 1881). This bill is essential to protect people 

with disabilities from discrimination and to correct the rollback of civil rights which 

has occurred since the enactment of the Americans with Disabilities Act (ADA) in 

1990. In advance of the tomorrow’s hearing in the Education and Labor Committee, 

we encourage you to support this crucial piece of legislation. 

The ADA promised to be a vital means of protecting the livelihoods of people with 

disabilities who faced discrimination. Since the enactment courts have narrowed the 

definition of disability to the point that the law often harms the very individuals 

it was designed to protect. The ADA Restoration Act would attempt to close loopholes in the ADA’s workplace provisions by clearly redefining the term ‘‘disability’’ 

to apply to any individual with a real or perceived physical or mental impairment. 

The definition of disability, which would restore clear Congressional intent, would 

ensure that individuals with conditions such as epilepsy, diabetes, hearing loss, 

learning disabilities, or psychiatric disabilities who utilize ‘‘mitigating measures’’ 

such as prescription drugs, prosthetics, and hearing aids, will be protected under 

the legislation. To encourage the courts to stop construing disability legislation narrowly in a way that defies the spirit of the law, the bill states that its provisions 

should be broadly construed to advance their remedial purpose. 

The Torah teaches us that the stamp of the Divine is present in each of us, regardless of physical or mental ability. Exodus 4:10-11 reads, ‘‘But Moses said to the 

Lord, ‘Please, O Lord, I have never been a man of words, either in times past or 

now that You have spoken to Your servant; I am slow of speech and slow of tongue.’ 

And the Lord said to him, ‘Who gives man speech? Who makes him dumb or deaf, 

seeing or blind? Is it not I, the Lord?’ ’’ Furthermore, Jewish tradition teaches us 

of our obligation to ensure equal access for all people and to help facilitate the full 

participation of individuals with disabilities in our communities. As we read in Leviticus 19:14, ‘‘You shall not insult the deaf, or place a stumbling block before the 

blind.’’

The right to earn a livelihood without fear of discrimination is one that should 

be unquestionably granted to all Americans, regardless of physical or mental disability. We urge you to show your support for equal rights by co-sponsoring and supporting the ADA Restoration Act of 2007. If you have any questions about the legislation or this letter, please contact Kate Bigam at (202) 387-2800 or Amy Aarons 

Rosen at (202) 736-5871. 

Sincerely, 

THE UNION FOR REFORM JUDAISM, 

UNITED JEWISH COMMUNITIES. 

And the following organizations: 

NATIONAL

American Conference of Cantors, 

American Jewish Committee, 

Anti-Defamation League, 

Association of Jewish Aging Services of North America, 

Association of Jewish Family & Children’s Agencies, 

B’nai B’rith International, 

Central Conference of American Rabbis, 

International Association of Jewish Vocational Services, 

Jewish Council for Public Affairs, 

Jewish Reconstructionist Federation, 

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Men of Reform Judaism, 

National Council of Jewish Women, 

North American Federation of Temple Youth, 

The United Synagogue of Conservative Judaism, 

Women of Reform Judaism, 

Yad HaChazakah—The Jewish Disability Empowerment Center, Inc. 

STATE

Massachusetts Association of Jewish Federations, 

Ohio Jewish Communities, 

Wisconsin Jewish Conference. 

LOCAL

Bronstein Jewish Family Service (Southbury, CT), 

Council for Jewish Elderly (Chicago, IL), 

Greater Bridgeport Section, NCJW, Inc. (Greater Bridgeport, CT), 

JEVS Human Services (Philadelphia, PA), 

Jewish Child and Family Services (Chicago, IL), 

Jewish Community Relations Council of Greater Washington (Greater Washington, 

DC), 

Jewish Community Relations Council of the Jewish Federation of Southern Arizona 

(Tucson, AZ), 

Jewish Family and Community Services (Jacksonville, FL), 

Jewish Family and Children’s Service of Greater Boston (Boston, MA), 

Jewish Family & Children’s Service of Minneapolis (Minneapolis, MN), 

Jewish Family and Children’s Services of San Francisco, the Peninsula, Marin and 

Sonoma Counties (San Francisco, CA), 

Jewish Family and Children’s Services of the East Bay (Berkley, CA) Jewish Family 

and Vocational Service (Louisville, KY), 

Jewish Family Service (Houston, TX), 

Jewish Family Service (San Diego, CA), 

Jewish Family Service (Wilkes-Barre, PA), 

Jewish Family Service of Buffalo & Erie County (Buffalo, NY), 

Jewish Family Service of Seattle (Seattle, WA), 

Jewish Family Service of the Desert (Palm Springs, CA), 

Jewish Family Services (Danbury, CT), 

Jewish Family Services of York (York, PA), 

Jewish Federation of Broward County Community Relations Committee (Broward 

County, FL), 

Jewish Federation of Greater Philadelphia (Philadelphia, PA), 

Jewish Federation of Metropolitan Chicago (Chicago, IL), 

Jewish Vocational Service and Employment Center (Chicago, IL), 

Jewish Vocational Service of MetroWest (East Orange, NJ), 

Jewish Vocational Services of the San Francisco Bay Area (San Francisco, CA), 

Metropolitan Council on Jewish Poverty (New York, NY), 

Milwaukee Jewish Council for Community Relations (Milwaukee, WI), 

National Council of Jewish Women, St. Louis Section (St. Louis, MO), 

National Council of Jewish Women, Brooklyn Section (New York, NY), 

Partnership for Jewish Life and Learning (Greater Washington, DC), 

Ruth Rales Jewish Family Service (Boca Raton, FL), 

Shaare Tefila Congregation (Silver Spring, MD), 

Sinai Health System (Chicago, IL), 

Syracuse Jewish Family Service, Inc. (Syracuse, NY), 

The Keshet Organization (Chicago, IL), 

The Amit Program, Inc. (Atlanta, GA), 

UJA-Federation of NY (New York, NY). 

[The statement of the Disability Policy Collaboration follows:]

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[The statement of the Epilepsy Foundation follows:]

January 29, 2008. 

Epilepsy Foundation Commends House Education and Labor Committee on 

ADA Restoration Act Hearing 

The Epilepsy Foundation, the national voluntary agency solely dedicated to the 

welfare of the three million people with epilepsy in the U.S. and their families, commends the U.S. House Committee on Education and Labor for holding a hearing on 

the ADA Restoration Act of 2007 (H.R. 3195). The Foundation also commends the 

leadership and vision of Committee Chairman, George Miller (D-CA) and Ranking 

Member Howard P. ‘‘Buck’’ McKeon (R-CA). 

In a series of decisions issued beginning in 1999, the Supreme Court effectively 

denied persons with a broad range of serious, but treatable, health conditions protection from discrimination in the workplace. The Court ruled that if the condition 


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can be managed through the use of ‘‘mitigating measures,’’ such as medication, prosthetics or the use of devices, the individual will be viewed as too functional to have 

a disability and will be denied the ADA’s protection against employment discrimination. People with a broad range of disabilities—including epilepsy, diabetes, cancer, 

multiple sclerosis, depression, bipolar disorder, posttraumatic stress disorder, HIV, 

missing limbs and intellectual and developmental disabilities—have been found not 

to be ‘‘disabled’’ under the ADA. The Supreme Court has shifted the focus away 

from an employer’s alleged misconduct and onto whether an individual can first 

meet a ‘‘demanding standard for qualifying as disabled.’’

This creates an absurd Catch-22 which allows employers to say a person is ‘‘too 

disabled’’ to do the job but not ‘‘disabled enough’’ to be protected by the law. People 

are being unfairly denied a job or fired because an employer mistakenly believes 

they cannot perform the job—or because the employer does not want ‘‘people like 

that’’ in the workplace. The case is thrown out of court without the individual ever 

having the chance to show he or she is qualified for the position. 

Here is a description of just a few of the many, many individual workers with 

epilepsy whom the lower courts have denied ADA protection: 

• A merchandize stocker who experienced weekly seizures and had memory problems as a result of antiseizure medication: In discussing the impact of the seizures, 

the court concluded that the effects of the seizures were not substantial enough because they ‘‘only’’ lasted 10 to 15 seconds and occurred ‘‘only’’ weekly. Because the 

court found that the individual was not covered under the ADA, it did not rule on 

whether the individual was able to do the job, but it did note in passing that ‘‘there 

is no indication that he is unable to perform the functions of his job as a result of 

his epilepsy or that he creates a dangerous situation in the workplace or any place 

else.’’

• A production line worker with uncontrolled nocturnal and daytime seizures: The 

nocturnal seizures occurred once or twice a week and caused severe sleep loss; the 

daytime seizures, though less frequent, caused shaking and loss of awareness, along 

with some memory loss. These impairments, the court found, were not substantial 

enough to qualify for protection. 

• A laborer in a food processing plant, who experienced a seizure causing loss of 

consciousness approximately once a month: The court held that the employee did 

not have a disability, even though it recognized that his epilepsy is debilitating at 

times. 

• A registered nurse, who worked as a claims adjuster for the county health department: Her seizures were uncontrolled despite her medication regimen and, as 

a result, she was unable to drive and had to rely on friends and family for transportation. Again, no coverage was available for this worker. 

This is not what Congress intended when it passed the ADA in 1990. Most employers and businesses try to do the right thing with regard to people with disabilities. But for those who discriminate against people with disabilities, the courts 

must be available to ensure that people with disabilities have a fair opportunity to 

work and be a part of everyday society. 

The ADA Restoration Act of 2007 (H.R. 3195) is based upon the model legislation 

proposed by the National Council on Disability in 2004, and is designed to give people with all kinds of conditions protection from adverse treatment on the basis of 

their condition, as Congress had originally intended when the law was passed in 

1990. Unlike the NCD’s broad proposed legislation which addressed a host of problems court interpretations have created, problems that must eventually be solved, 

in this legislation, H.R. 3195, Congress focuses only on fixing the definition of disability, that is, ensuring that the ADA has the broad scope and covers people as 

the law originally intended. We believe that this problem must be solved immediately, or the rest of the law has limited usefulness as a tool to redress employment 

discrimination against people with epilepsy and similar disabilities. 

The Epilepsy Foundation applauds the Congressional leaders who have introduced 

and co-sponsored H.R. 3195 for recognizing and addressing the fundamental problem of coverage under the current definition of disability in the ADA as now implemented by the courts. We appreciate the hearing being held in the Education and 

Labor Committee and look forward to speedy passage of this legislation. 

[The statement of the National Council on Disability follows:]

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[The statement of the National Council on Independent Living 

follows:]

Prepared Statement of the National Council on Independent Living (NCIL) 

Background: Passed with overwhelming bipartisan support, the Americans with 

Disabilities Act of 1990 was designed as a ‘‘clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’’ 

Without doubt, the ADA has transformed America’s communities, removing barriers 

to persons with disabilities in the built environment and infrastructure, and has 

substantively advanced the cause of community integration for people with disabilities. 

Issues: Yet, as documented in the National Council on Disability’s report ‘‘Righting the ADA,’’ a series of flawed Supreme Court decisions have seriously undermined our ability to realize the full promise of the ADA. In Sutton v. United AirVerDate 0ct 09 2002 17:09 Mar 21, 2008 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-76\40315.TXT HBUD1 PsN: DICK

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lines, and Toyota v. Williams, the Supreme Court has taken to interpreting the definition of disability in a restrictive manner that Congress never envisioned, placing 

the burden on persons with disabilities to prove that they are entitled to the ADA’s 

protections—particularly in the employment sphere. This creates a Catch-22 in 

which employees can be discriminated against on the basis of their disability but 

unable to enforce their rights because they cannot meet the high threshold the 

courts have set to prove they are disabled. Furthermore, in University of Alabama 

v. Garrett, the Supreme Court ruled 5-4 that the 11th Amendment prohibits suits 

in federal court by state employees to recover monetary damages under Title I of 

the ADA. The Supreme Court’s restrictive approach to the ADA in employment 

cases is especially disconcerting since the unemployment of persons with disabilities 

wishing to work remains widespread. 

Proper implementation of the original intent of the ADA in the employment 

sphere is critical to the economic self-sufficiency and full societal participation of 

people with disabilities that is at the core of the Independent Living (IL) movement. 

The fact that only 7% of persons with disabilities own their own homes and roughly 

30% of Americans with disabilities are employed is a reflection of the continued inability of persons with disabilities to enforce their right to non-discrimination in the 

workplace under the Americans with Disabilities Act. 

Issues Raised by the U.S. Chamber of Commerce: The U.S. Chamber of Commerce 

claims that H.R. 3195 ensures that protections on the basis of disability apply 

broadly. This is correct. The Supreme Court did not understand that significant disability as defined by the Americans with Disabilities Act includes people with intellectual disabilities (formerly known as Mental Retardation), epilepsy, diabetes, cancer, and mental illnesses, among others. For a person who merely has poor vision 

that is correctible, he or she may indeed be considered disabled by a court. The 

question is not whether a person with a disability has a disability or is regarded 

as a person with a disability. The question is whether or not the person has been 

discriminated against on the basis of disability. The intent of H.R. 3195 is to prevent discrimination on the basis of disability, not to create a protected class. 

The Chamber of Commerce also alleges that ‘‘H.R. 3195 would reverse the longstanding rule that allows employers to determine what the essential functions of a 

job are, allowing plaintiffs to second-guess routine job decisions that employers must 

make every day.’’ There is no such language in H.R. 3195 to this effect. 

The problem with the Supreme Court’s and lower courts’ decisions, referenced in 

HR 3195’s ‘‘Findings and Purposes,’’ is that they refuse to even consider whether 

discrimination based on disability has occurred. Therefore, the courts ruled that the 

plaintiff was either not disabled or not disabled enough to be protected by the ADA. 

Had the courts properly reviewed these cases, they would have decided them on the 

basis of whether the plaintiff was qualified to perform the essential functions of the 

job with or without reasonable accommodation. 

The real problem in the Chamber of Commerce’s August 22 letter to the U.S. 

House of Representatives is not their fallacious reasoning, but the blatant prejudice 

it exhibits against Americans with disabilities. NCIL has members in all but five 

Congressional Districts. Our experience working with businesses in communities 

across the country over three decades shows that the majority of businesses are 

more open minded than the board and staff of the Chamber of Commerce. 

NCIL supports: 

Enactment of the ADA Restoration Act as introduced by House Majority Leader 

Steny Hoyer, Rep. James Sensenbrenner, and cosponsored by more than 200 of their 

colleagues to remedy decades of purposeful, unconstitutional discrimination; 

Funding for ongoing public education on the requirements of the ADA, and adequate funding for strong enforcement by the US Department of Justice, US Equal 

Employment Opportunity Commission, Federal Communications Commission, and 

other agencies with enforcement responsibilities; 

Creative efforts by federally-funded enforcement, technical assistance, and advocacy organizations to promote the positive aspects of the ADA’s accessibility and 

equal opportunity requirements; 

Efforts by States to voluntarily waive their immunity from damage suits brought 

by people with disabilities under Titles I and II of the ADA, and; 

Bipartisan Congressional efforts to overturn Supreme Court decisions narrowing 

the scope of the ADA, by enacting the ADA Restoration Act, H.R. 3195. 

Thank you for your consideration. Please do not hesitate to contact Deb Cotter 

of our policy staff if you have additional questions or concerns, please contact us. 

Sincerely, 

JOHN A. LANCASTER, Executive Director, 

KELLY BUCKLAND, President, 

National Council on Independent Living. 

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[Additional statements submitted by Mr. McKeon follow:] 

[A statement of organizations in opposition to the bill follows:]

January 28, 2008. 

Hon. GEORGE MILLER, Chairman, 

Hon. HOWARD ‘‘BUCK’’ MCKEON, Ranking Member, 

Committee on Education & Labor, U.S. House of Representatives, Washington, DC. 

DEAR CHAIRMAN MILLER AND RANKING MEMBER MCKEON: We write today to 

share our concerns regarding H.R. 3195, the ‘‘ADA Restoration Act’’ that your committee will discuss in a legislative hearing on January 29. As a group, we strongly 

believe that the Americans with Disabilities Act (ADA) provides important and necessary protections for employees and applicants. However, this legislation as currently drafted would not ‘‘restore’’ the ADA, but would dramatically expand it to 

cover even the most minor impairments, such as bad eyesight, the flu or a small 

scar. In short, the bill is inconsistent with Congressional intent expressed when the 

law was passed in 1990, would trivialize the concept of disability and inappropriately divert employer resources from those who need them most. 

As you examine H.R. 3195, it is critical to note the key distinction between ‘‘disability’’ and ‘‘impairment’’ under the law. Under the ADA, an individual is ‘‘disabled’’ if he or she has a physical or mental impairment that substantially limits 

a major life activity. The law defines ‘‘impairment’’ broadly to cover virtually any 

physical or mental condition. An impairment is considered a covered disability only 

if it substantially limits activities that are central to daily life, such as seeing, reading or breathing. If an individual is found to be disabled and qualified to perform 

the essential functions of the job, he or she may request an accommodation from 

the employer. The individual and employer then engage in an interactive process 

to reach a reasonable accommodation so the employee can perform his or her job. 

This process has worked well under the law and is structured to respond to the individual needs of employees. 

H.R. 3195 drastically expands the definition of ‘‘disability,’’ by eliminating the requirements that an individual’s impairment substantially limit a major life activity. 

Thus, the bill’s concept of ‘‘disabled’’ would be expanded to cover any impairment, 

regardless of how temporary, intermittent, occasional, mild or minor it is, including 

health conditions such as the flu. The change would result in the law covering conditions that Congress never intended to be covered by the ADA, exponentially increasing the number of persons who can bring a disability discrimination claim. For 

example, a person with a minor finger cut requiring stitches would be considered 

just as disabled as a veteran returning home having lost his or her arm in combat, 

and an individual with occasional headaches would receive the same protection as 

an individual with a serious brain damage. In essence, H.R. 3195 would create an 

environment where anything less than perfect health would cause an individual to 

be covered under the ADA. The resulting increase in requests for accommodation 

would overwhelm employers and make it more difficult for them to assist the severely disabled. 

These bills make many other unworkable changes to the ADA including a dramatic expansion of employers’ reasonable accommodation obligations and a reversal 

of a long-established rule found in all federal antidiscrimination laws that a person 

must show that he or she is qualified to perform the job. Instead, the bills would 

shift this responsibility to employers. 

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Thank you for your consideration. 

Sincerely, 

AMERICAN ARCHITECTURAL MANUFACTURERS ASSOCIATION, 

AMERICAN COMPOSITES MANUFACTURERS ASSOCIATION, 

AMERICAN HOTEL & LODGING ASSOCIATION, 

AMERICAN IRON AND STEEL INSTITUTE, 

AMERICAN SPORTFISHING ASSOCIATION, 

AMERICAN SUPPLY ASSOCIATION, 

ASSOCIATED BUILDERS & CONTRACTORS, 

ASSOCIATED GENERAL CONTRACTORS, 

COLLEGE AND UNIVERSITY PROFESSIONAL ASSOCIATION FOR HUMAN

RESOURCES, 

ENVIRONMENTAL INDUSTRY ASSOCIATIONS, 

FOOD MARKETING INSTITUTE, 

HR POLICY ASSOCIATION, 

INDEPENDENT ELECTRICAL CONTRACTORS, 

INTERNATIONAL FOODSERVICE DISTRIBUTORS ASSOCIATION, 

INTERNATIONAL FRANCHISE ASSOCIATION, 

INTERNATIONAL PUBLIC MANAGEMENT ASSOCIATION FOR HUMAN RESOURCES, 

INTERNATIONAL WAREHOUSE LOGISTICS ASSOCIATION, 

NATIONAL ASSOCIATION OF CONVENIENCE STORES, 

NATIONAL ASSOCIATION OF MANUFACTURERS, 

NATIONAL ASSOCIATION OF WHOLESALER-DISTRIBUTORS, 

NATIONAL COUNCIL OF CHAIN RESTAURANTS, 

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, 

NATIONAL PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION, 

NATIONAL RESTAURANT ASSOCIATION, 

NATIONAL RETAIL FEDERATION, 

NATIONAL ROOFING CONTRACTORS ASSOCIATION, 

NATIONAL SHOOTING SPORTS FOUNDATION, 

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATIONS, 

NON-FERROUS FOUNDERS’ SOCIETY, 

NORTH AMERICAN DIE CASTING ASSOCIATION, 

PRINTING INDUSTRIES OF AMERICA, 

RETAIL INDUSTRY LEADERS ASSOCIATION, 

SOCIETY FOR HUMAN RESOURCE MANAGEMENT, 

SPORTING ARMS AND AMMUNITION MANUFACTURERS’ INSTITUTE, 

STEEL MANUFACTURERS ASSOCIATION, 

TEXTILE CARE ALLIED TRADES ASSOCIATION, 

TEXTILE RENTAL SERVICES ASSOCIATION OF AMERICA, 

U.S. CHAMBER OF COMMERCE, 

WASTE EQUIPMENT AND TECHNOLOGY ASSOCIATION, 

WOOD MOULDING & MILLWORK PRODUCERS ASSOCIATION. 

[The statement of the U.S. Chamber of Commerce follows:]

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[The statement of the U.S. Department of Justice follows:]


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[The statement of the HR Policy Association follows:]


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[The statement of the National Federation of Independent Business follows:]

January 29, 2008. 

Hon. GEORGE MILLER, Chairman, 

Hon. HOWARD ‘‘BUCK’’ MCKEON, Ranking Member, 

Committee on Education & Labor, U.S. House of Representatives, Washington, DC. 

DEAR CHAIRMAN MILLER AND RANKING MEMBER MCKEON: On behalf of the National Federation of Independent Business (NFIB), the nation’s leading small-business advocacy group, I am writing to express opposition to H.R. 3195, the ‘‘ADA Restoration Act.’’

The 1990 Americans with Disabilities Act (ADA) provides important and necessary protections against disability discrimination in the workplace. H.R. 3195 

would dramatically expand the original ADA by changing the definition of disability, 

expanding coverage to less severe impairments. H.R. 3195 is inconsistent with the 


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original intent expressed by Congress to protect individuals who are substantially 

limited by severe disabilities. Trivializing the concept of ‘‘disability’’ will inappropriately divert employer resources from those who need them most. 

NFIB opposes H.R. 3195 because it does not aim to make any positive policy 

changes to an already complex ADA law. NFIB approves of Congressional considerations to improve small employers’ ability to comply with the law, such as a grace 

period for accommodating disabled employees. In an 2000 member ballot survey, 97 

percent of NFIB members agreed that small businesses should be given time to correct ADA violations before a lawsuit can be filed against them. 

Small-business resources are limited, yet small businesses actively seek counsel 

and already contribute a great deal of resources to comply with a myriad of confusing employment policy regulations like ADA. More challenging, H.R. 3195 does 

not provide any clear legislative guidance or intent on what constitutes a disability. 

Due to this lack of clarity, NFIB is concerned that an individual with occasional 

headaches could file a lawsuit demanding the same protection as an individual with 

serious brain damage. The resulting increase in questionable requests for accommodation will only make it more difficult for them to assist the severely disabled. It 

will also certainly increase the number of persons that will bring unreasonable disability discrimination claims. 

With this, H.R. 3195 would prohibit employers from considering the effects of any 

mitigating measures an individual uses to manage his or her impairment. For instance, a small employer would not be able to consider the very significant negative 

effects of medication that may be used by employees—such as those which come 

with warnings with respect to operating heavy machinery. 

Finally, H.R. 3195 also includes an unworkable and dramatic expansion of employer obligations and reverses a long-established rule found in all federal antidiscrimination laws that a person must show that she or he is qualified to perform 

the job. Instead, this legislation would shift the responsibility to employers. Under 

current law, if an individual is found to be disabled and qualified to perform the 

essential functions of the job, he or she may request an accommodation from the 

employer. The individual and employer then engage in an interactive process to 

reach a reasonable accommodation so the employee can perform his or her job. 

Last year, the EEOC received 15,575 charges of discrimination under the ADA yet 

found reasonable cause for discrimination in only 5.6 percent of the time. NFIB is 

concerned that H.R. 3195 will only serve as additional fodder for trial lawyers, diverting needed resources from protecting the rights of the truly disabled. I urge your 

opposition to H.R. 3195. 

Sincerely, 

DAN DANNER, Executive Vice President, 

Federal Public Policy and Political, National Federation of Independent Business. 

[Whereupon, at 11:53 a.m., the committee was adjourned.]

Æ