II 

Calendar No. 927 

110TH CONGRESS 

2D SESSION S. 3406 

To restore the intent and protections of the Americans with Disabilities 

Act of 1990. 

IN THE SENATE OF THE UNITED STATES 

JULY 31, 2008 

Mr. HARKIN (for himself, Mr. HATCH, Mr. KENNEDY, Mr. ENZI, Mr. SPECTER, Mr. OBAMA, Mr. MCCAIN, Mr. DODD, Mr. GREGG, Mrs. CLINTON, 

Mr. ALEXANDER, Mr. JOHNSON, Mr. ROBERTS, Mr. KERRY, Mr. COLEMAN, Mr. FEINGOLD, Ms. SNOWE, Mr. LEAHY, Mr. BURR, Mr. BROWN, 

Mr. SMITH, Mr. DURBIN, Ms. MURKOWSKI, Mr. LAUTENBERG, Mr. WARNER, Mr. SANDERS, Mr. BROWNBACK, Mr. REED, Mr. MARTINEZ, Ms. 

MIKULSKI, Mr. ISAKSON, Mr. CASEY, Mr. CRAIG, Mrs. MURRAY, Mr. 

BENNETT, Ms. LANDRIEU, Ms. COLLINS, Mr. BIDEN, Mr. ALLARD, Mr. 

NELSON of Florida, Mr. SUNUNU, Mr. CARDIN, Mr. THUNE, Mr. LEVIN, 

Mr. BARRASSO, Mrs. MCCASKILL, Mr. CRAPO, Mr. SCHUMER, Mr. STEVENS, Mr. SALAZAR, Mr. VOINOVICH, Mr. TESTER, Mr. COCHRAN, Mr. 

REID, Mr. LUGAR, Mr. CHAMBLISS, Mrs. DOLE, Mrs. BOXER, Mrs. 

FEINSTEIN, Ms. KLOBUCHAR, Ms. STABENOW, Mr. KOHL, Mrs. LINCOLN, Mr. MENENDEZ, and Mr. WYDEN) introduced the following bill; 

which was read the first time 

AUGUST 1, 2008 

Read the second time and placed on the calendar 

A BILL 

To restore the intent and protections of the Americans with 

Disabilities Act of 1990. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘ADA Amendments Act 

5 of 2008’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) in enacting the Americans with Disabilities 

9 Act of 1990 (ADA), Congress intended that the Act 

10 ‘‘provide a clear and comprehensive national man11 date for the elimination of discrimination against in12 dividuals with disabilities’’ and provide broad cov13 erage; 

14 (2) in enacting the ADA, Congress recognized 

15 that physical and mental disabilities in no way di16 minish a person’s right to fully participate in all as17 pects of society, but that people with physical or 

18 mental disabilities are frequently precluded from 

19 doing so because of prejudice, antiquated attitudes, 

20 or the failure to remove societal and institutional 

21 barriers; 

22 (3) while Congress expected that the definition 

23 of disability under the ADA would be interpreted 

24 consistently with how courts had applied the defini25 tion of a handicapped individual under the RehabiliVerDate Aug 31 2005 23:58 Aug 01, 2008 Jkt 069002 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3406.PCS S3406

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1 tation Act of 1973, that expectation has not been 

2 fulfilled; 

3 (4) the holdings of the Supreme Court in Sut4 ton v. United Air Lines, Inc., 527 U.S. 471 (1999) 

5 and its companion cases have narrowed the broad 

6 scope of protection intended to be afforded by the 

7 ADA, thus eliminating protection for many individ8 uals whom Congress intended to protect; 

9 (5) the holding of the Supreme Court in Toyota 

10 Motor Manufacturing, Kentucky, Inc. v. Williams, 

11 534 U.S. 184 (2002) further narrowed the broad 

12 scope of protection intended to be afforded by the 

13 ADA; 

14 (6) as a result of these Supreme Court cases, 

15 lower courts have incorrectly found in individual 

16 cases that people with a range of substantially lim17 iting impairments are not people with disabilities; 

18 (7) in particular, the Supreme Court, in the 

19 case of Toyota Motor Manufacturing, Kentucky, Inc. 

20 v. Williams, 534 U.S. 184 (2002), interpreted the 

21 term ‘‘substantially limits’’ to require a greater de22 gree of limitation than was intended by Congress; 

23 and 

24 (8) Congress finds that the current Equal Em25 ployment Opportunity Commission ADA regulations 


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1 defining the term ‘‘substantially limits’’ as ‘‘signifi2 cantly restricted’’ are inconsistent with congressional 

3 intent, by expressing too high a standard. 

4 (b) PURPOSES.—The purposes of this Act are— 

5 (1) to carry out the ADA’s objectives of pro6 viding ‘‘a clear and comprehensive national mandate 

7 for the elimination of discrimination’’ and ‘‘clear, 

8 strong, consistent, enforceable standards addressing 

9 discrimination’’ by reinstating a broad scope of pro10 tection to be available under the ADA; 

11 (2) to reject the requirement enunciated by the 

12 Supreme Court in Sutton v. United Air Lines, Inc., 

13 527 U.S. 471 (1999) and its companion cases that 

14 whether an impairment substantially limits a major 

15 life activity is to be determined with reference to the 

16 ameliorative effects of mitigating measures; 

17 (3) to reject the Supreme Court’s reasoning in 

18 Sutton v. United Air Lines, Inc., 527 U.S. 471 

19 (1999) with regard to coverage under the third 

20 prong of the definition of disability and to reinstate 

21 the reasoning of the Supreme Court in School Board 

22 of Nassau County v. Arline, 480 U.S. 273 (1987) 

23 which set forth a broad view of the third prong of 

24 the definition of handicap under the Rehabilitation 

25 Act of 1973; 


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1 (4) to reject the standards enunciated by the 

2 Supreme Court in Toyota Motor Manufacturing, 

3 Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), 

4 that the terms ‘‘substantially’’ and ‘‘major’’ in the 

5 definition of disability under the ADA ‘‘need to be 

6 interpreted strictly to create a demanding standard 

7 for qualifying as disabled,’’ and that to be substan8 tially limited in performing a major life activity 

9 under the ADA ‘‘an individual must have an impair10 ment that prevents or severely restricts the indi11 vidual from doing activities that are of central im12 portance to most people’s daily lives’’; 

13 (5) to convey congressional intent that the 

14 standard created by the Supreme Court in the case 

15 of Toyota Motor Manufacturing, Kentucky, Inc. v. 

16 Williams, 534 U.S. 184 (2002) for ‘‘substantially 

17 limits’’, and applied by lower courts in numerous de18 cisions, has created an inappropriately high level of 

19 limitation necessary to obtain coverage under the 

20 ADA, to convey that it is the intent of Congress that 

21 the primary object of attention in cases brought 

22 under the ADA should be whether entities covered 

23 under the ADA have complied with their obligations, 

24 and to convey that the question of whether an indiVerDate Aug 31 2005 23:58 Aug 01, 2008 Jkt 069002 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3406.PCS S3406

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1 vidual’s impairment is a disability under the ADA 

2 should not demand extensive analysis; and 

3 (6) to express Congress’ expectation that the 

4 Equal Employment Opportunity Commission will re5 vise that portion of its current regulations that de6 fines the term ‘‘substantially limits’’ as ‘‘signifi7 cantly restricted’’ to be consistent with this Act, in8 cluding the amendments made by this Act. 

9 SEC. 3. CODIFIED FINDINGS. 

10 Section 2(a) of the Americans with Disabilities Act 

11 of 1990 (42 U.S.C. 12101) is amended— 

12 (1) by amending paragraph (1) to read as fol13 lows: 

14 ‘‘(1) physical or mental disabilities in no way 

15 diminish a person’s right to fully participate in all 

16 aspects of society, yet many people with physical or 

17 mental disabilities have been precluded from doing 

18 so because of discrimination; others who have a 

19 record of a disability or are regarded as having a 

20 disability also have been subjected to discrimina21 tion;’’; 

22 (2) by striking paragraph (7); and 

23 (3) by redesignating paragraphs (8) and (9) as 

24 paragraphs (7) and (8), respectively. 


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1 SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUC2 TION. 

3 (a) DEFINITION OF DISABILITY.—Section 3 of the 

4 Americans with Disabilities Act of 1990 (42 U.S.C. 

5 12102) is amended to read as follows: 

6 ‘‘SEC. 3. DEFINITION OF DISABILITY. 

7 ‘‘As used in this Act: 

8 ‘‘(1) DISABILITY.—The term ‘disability’ means, 

9 with respect to an individual— 

10 ‘‘(A) a physical or mental impairment that 

11 substantially limits one or more major life ac12 tivities of such individual; 

13 ‘‘(B) a record of such an impairment; or 

14 ‘‘(C) being regarded as having such an im15 pairment (as described in paragraph (3)). 

16 ‘‘(2) MAJOR LIFE ACTIVITIES.— 

17 ‘‘(A) IN GENERAL.—For purposes of para18 graph (1), major life activities include, but are 

19 not limited to, caring for oneself, performing 

20 manual tasks, seeing, hearing, eating, sleeping, 

21 walking, standing, lifting, bending, speaking, 

22 breathing, learning, reading, concentrating, 

23 thinking, communicating, and working. 

24 ‘‘(B) MAJOR BODILY FUNCTIONS.—For 

25 purposes of paragraph (1), a major life activity 

26 also includes the operation of a major bodily 


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1 function, including but not limited to, functions 

2 of the immune system, normal cell growth, di3 gestive, bowel, bladder, neurological, brain, res4 piratory, circulatory, endocrine, and reproduc5 tive functions. 

6 ‘‘(3) REGARDED AS HAVING SUCH AN IMPAIR7 MENT.—For purposes of paragraph (1)(C): 

8 ‘‘(A) An individual meets the requirement 

9 of ‘being regarded as having such an impair10 ment’ if the individual establishes that he or 

11 she has been subjected to an action prohibited 

12 under this Act because of an actual or perceived 

13 physical or mental impairment whether or not 

14 the impairment limits or is perceived to limit a 

15 major life activity. 

16 ‘‘(B) Paragraph (1)(C) shall not apply to 

17 impairments that are transitory and minor. A 

18 transitory impairment is an impairment with an 

19 actual or expected duration of 6 months or less. 

20 ‘‘(4) RULES OF CONSTRUCTION REGARDING

21 THE DEFINITION OF DISABILITY.—The definition of 

22 ‘disability’ in paragraph (1) shall be construed in ac23 cordance with the following: 

24 ‘‘(A) The definition of disability in this Act 

25 shall be construed in favor of broad coverage of 


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1 individuals under this Act, to the maximum ex2 tent permitted by the terms of this Act. 

3 ‘‘(B) The term ‘substantially limits’ shall 

4 be interpreted consistently with the findings 

5 and purposes of the ADA Amendments Act of 

6 2008. 

7 ‘‘(C) An impairment that substantially lim8 its one major life activity need not limit other 

9 major life activities in order to be considered a 

10 disability. 

11 ‘‘(D) An impairment that is episodic or in 

12 remission is a disability if it would substantially 

13 limit a major life activity when active. 

14 ‘‘(E)(i) The determination of whether an 

15 impairment substantially limits a major life ac16 tivity shall be made without regard to the ame17 liorative effects of mitigating measures such 

18 as— 

19 ‘‘(I) medication, medical supplies, 

20 equipment, or appliances, low-vision de21 vices (which do not include ordinary eye22 glasses or contact lenses), prosthetics in23 cluding limbs and devices, hearing aids and 

24 cochlear implants or other implantable 


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1 hearing devices, mobility devices, or oxygen 

2 therapy equipment and supplies; 

3 ‘‘(II) use of assistive technology; 

4 ‘‘(III) reasonable accommodations or 

5 auxiliary aids or services; or 

6 ‘‘(IV) learned behavioral or adaptive 

7 neurological modifications. 

8 ‘‘(ii) The ameliorative effects of the miti9 gating measures of ordinary eyeglasses or con10 tact lenses shall be considered in determining 

11 whether an impairment substantially limits a 

12 major life activity. 

13 ‘‘(iii) As used in this subparagraph— 

14 ‘‘(I) the term ‘ordinary eyeglasses or 

15 contact lenses’ means lenses that are in16 tended to fully correct visual acuity or 

17 eliminate refractive error; and 

18 ‘‘(II) the term ‘low-vision devices’ 

19 means devices that magnify, enhance, or 

20 otherwise augment a visual image.’’. 

21 (b) CONFORMING AMENDMENT.—The Americans 

22 with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) 

23 is further amended by adding after section 3 the following: 

24 ‘‘SEC. 4. ADDITIONAL DEFINITIONS. 

25 ‘‘As used in this Act: 


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1 ‘‘(1) AUXILIARY AIDS AND SERVICES.—The 

2 term ‘auxiliary aids and services’ includes— 

3 ‘‘(A) qualified interpreters or other effec4 tive methods of making aurally delivered mate5 rials available to individuals with hearing im6 pairments; 

7 ‘‘(B) qualified readers, taped texts, or 

8 other effective methods of making visually deliv9 ered materials available to individuals with vis10 ual impairments; 

11 ‘‘(C) acquisition or modification of equip12 ment or devices; and 

13 ‘‘(D) other similar services and actions. 

14 ‘‘(2) STATE.—The term ‘State’ means each of 

15 the several States, the District of Columbia, the 

16 Commonwealth of Puerto Rico, Guam, American 

17 Samoa, the Virgin Islands of the United States, the 

18 Trust Territory of the Pacific Islands, and the Com19 monwealth of the Northern Mariana Islands.’’. 

20 (c) AMENDMENT TO THE TABLE OF CONTENTS.— 

21 The table of contents contained in section 1(b) of the 

22 Americans with Disabilities Act of 1990 is amended by 

23 striking the item relating to section 3 and inserting the 

24 following items: 

‘‘Sec. 3. Definition of disability. 

‘‘Sec. 4. Additional definitions.’’. 


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1 SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY. 

2 (a) ON THE BASIS OF DISABILITY.—Section 102 of 

3 the Americans with Disabilities Act of 1990 (42 U.S.C. 

4 12112) is amended— 

5 (1) in subsection (a), by striking ‘‘with a dis6 ability because of the disability of such individual’’ 

7 and inserting ‘‘on the basis of disability’’; and 

8 (2) in subsection (b) in the matter preceding 

9 paragraph (1), by striking ‘‘discriminate’’ and in10 serting ‘‘discriminate against a qualified individual 

11 on the basis of disability’’. 

12 (b) QUALIFICATION STANDARDS AND TESTS RE13 LATED TO UNCORRECTED VISION.—Section 103 of the 

14 Americans with Disabilities Act of 1990 (42 U.S.C. 

15 12113) is amended by redesignating subsections (c) and 

16 (d) as subsections (d) and (e), respectively, and inserting 

17 after subsection (b) the following new subsection: 

18 ‘‘(c) QUALIFICATION STANDARDS AND TESTS RE19 LATED TO UNCORRECTED VISION.—Notwithstanding sec20 tion 3(4)(E)(ii), a covered entity shall not use qualification 

21 standards, employment tests, or other selection criteria 

22 based on an individual’s uncorrected vision unless the 

23 standard, test, or other selection criteria, as used by the 

24 covered entity, is shown to be job-related for the position 

25 in question and consistent with business necessity.’’. 

26 (c) CONFORMING AMENDMENTS.— 


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1 (1) Section 101(8) of the Americans with Dis2 abilities Act of 1990 (42 U.S.C. 12111(8)) is 

3 amended— 

4 (A) in the paragraph heading, by striking 

5 ‘‘WITH A DISABILITY’’; and 

6 (B) by striking ‘‘with a disability’’ after 

7 ‘‘individual’’ both places it appears. 

8 (2) Section 104(a) of the Americans with Dis9 abilities Act of 1990 (42 U.S.C. 12114(a)) is 

10 amended by striking ‘‘the term ‘qualified individual 

11 with a disability’ shall’’ and inserting ‘‘a qualified 

12 individual with a disability shall’’. 

13 SEC. 6. RULES OF CONSTRUCTION. 

14 (a) Title V of the Americans with Disabilities Act of 

15 1990 (42 U.S.C. 12201 et seq.) is amended— 

16 (1) by adding at the end of section 501 the fol17 lowing: 

18 ‘‘(e) BENEFITS UNDER STATE WORKER’S COM19 PENSATION LAWS.—Nothing in this Act alters the stand20 ards for determining eligibility for benefits under State 

21 worker’s compensation laws or under State and Federal 

22 disability benefit programs. 

23 ‘‘(f) FUNDAMENTAL ALTERATION.—Nothing in this 

24 Act alters the provision of section 302(b)(2)(A)(ii), speci25 fying that reasonable modifications in policies, practices, 


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1 or procedures shall be required, unless an entity can dem2 onstrate that making such modifications in policies, prac3 tices, or procedures, including academic requirements in 

4 postsecondary education, would fundamentally alter the 

5 nature of the goods, services, facilities, privileges, advan6 tages, or accommodations involved. 

7 ‘‘(g) CLAIMS OF NO DISABILITY.—Nothing in this 

8 Act shall provide the basis for a claim by an individual 

9 without a disability that the individual was subject to dis10 crimination because of the individual’s lack of disability. 

11 ‘‘(h) REASONABLE ACCOMMODATIONS AND MODI12 FICATIONS.—A covered entity under title I, a public entity 

13 under title II, and any person who owns, leases (or leases 

14 to), or operates a place of public accommodation under 

15 title III, need not provide a reasonable accommodation or 

16 a reasonable modification to policies, practices, or proce17 dures to an individual who meets the definition of dis18 ability in section 3(1) solely under subparagraph (C) of 

19 such section.’’; 

20 (2) by redesignating section 506 through 514 

21 as sections 507 through 515, respectively, and add22 ing after section 505 the following: 


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1 ‘‘SEC. 506. RULE OF CONSTRUCTION REGARDING REGU2 LATORY AUTHORITY. 

3 ‘‘The authority to issue regulations granted to the 

4 Equal Employment Opportunity Commission, the Attor5 ney General, and the Secretary of Transportation under 

6 this Act includes the authority to issue regulations imple7 menting the definitions of disability in section 3 (including 

8 rules of construction) and the definitions in section 4, con9 sistent with the ADA Amendments Act of 2008.’’; and 

10 (3) in section 511 (as redesignated by para11 graph (2)) (42 U.S.C. 12211), in subsection (c), by 

12 striking ‘‘511(b)(3)’’ and inserting ‘‘512(b)(3)’’. 

13 (b) The table of contents contained in section 1(b) 

14 of the Americans with Disabilities Act of 1990 is amended 

15 by redesignating the items relating to sections 506 

16 through 514 as the items relating to sections 507 through 

17 515, respectively, and by inserting after the item relating 

18 to section 505 the following new item: 

‘‘Sec. 506. Rule of construction regarding regulatory authority.’’. 

19 SEC. 7. CONFORMING AMENDMENTS. 

20 Section 7 of the Rehabilitation Act of 1973 (29 

21 U.S.C. 705) is amended— 

22 (1) in paragraph (9)(B), by striking ‘‘a phys23 ical’’ and all that follows through ‘‘major life activi24 ties’’, and inserting ‘‘the meaning given it in section 


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1 3 of the Americans with Disabilities Act of 1990 (42 

2 U.S.C. 12102)’’; and 

3 (2) in paragraph (20)(B), by striking ‘‘any per4 son who’’ and all that follows through the period at 

5 the end, and inserting ‘‘any person who has a dis6 ability as defined in section 3 of the Americans with 

7 Disabilities Act of 1990 (42 U.S.C. 12102).’’. 

8 SEC. 8. EFFECTIVE DATE. 

9 This Act and the amendments made by this Act shall 

10 become effective on January 1, 2009. 


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Calendar No. 927 

110TH CONGRESS 

2D SESSION S. 3406 

A BILL 

To restore the intent and protections of the 

Americans with Disabilities Act of 1990. 

AUGUST 1, 2008 

Read the second time and placed on the calendar 


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