II 

110TH CONGRESS 

1ST SESSION S. 1881 

To amend the Americans with Disabilities Act of 1990 to restore the intent 

and protections of that Act, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 26, 2007 

Mr. HARKIN (for himself and Mr. SPECTER) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Americans with Disabilities Act of 1990 to 

restore the intent and protections of that Act, and for 

other purposes. 

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 ‘‘Americans with Dis5 abilities Act Restoration Act of 2007’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) in enacting the Americans with Disabilities 

9 Act of 1990, Congress intended that the Act ‘‘estabVerDate Aug 31 2005 06:37 Jul 27, 2007 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1881.IS S1881

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1 lish a clear and comprehensive prohibition of dis2 crimination on the basis of disability’’, and provide 

3 broad coverage and vigorous and effective remedies 

4 without unnecessary and obstructive defenses; 

5 (2) decisions and opinions of the Supreme 

6 Court have unduly narrowed the broad scope of pro7 tection afforded by the Americans with Disabilities 

8 Act of 1990, eliminating protection for a broad 

9 range of individuals whom Congress intended to pro10 tect; 

11 (3) in enacting the Americans with Disabilities 

12 Act of 1990, Congress recognized that physical and 

13 mental impairments are natural parts of the human 

14 experience that in no way diminish a person’s right 

15 to fully participate in all aspects of society, but Con16 gress also recognized that people with physical or 

17 mental impairments having the talent, skills, abili18 ties, and desire to participate in society are fre19 quently precluded from doing so because of preju20 dice, antiquated attitudes, or the failure to remove 

21 societal and institutional barriers; 

22 (4)(A) Congress modeled the Americans with 

23 Disabilities Act of 1990 definition of disability on 

24 that of section 504 of the Rehabilitation Act of 1973 

25 (referred to in this section as ‘‘section 504’’), which 


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1 had, prior to the date of enactment of the Americans 

2 with Disabilities Act of 1990, been construed broad3 ly to encompass both actual and perceived limita4 tions, and limitations imposed by society; and 

5 (B) the broad conception of the definition con6 tained in section 504 had been underscored by the 

7 Supreme Court’s statement in its decision in School 

8 Board of Nassau County v. Arline, 480 U.S. 273 

9 (1987), that the definition ‘‘acknowledged that soci10 ety’s myths and fears about disability and disease 

11 are as handicapping as are the physical limitations 

12 that flow from actual impairment’’; 

13 (5) in adopting, in the Americans with Disabil14 ities Act of 1990, the concept of disability expressed 

15 in section 504, Congress understood that adverse ac16 tion based on a person’s physical or mental impair17 ment is often unrelated to the limitations caused by 

18 the impairment itself; 

19 (6) instead of following congressional expecta20 tions that the term ‘‘disability’’ would be interpreted 

21 broadly in the Americans with Disabilities Act of 

22 1990, the Supreme Court has ruled, in Toyota 

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

24 534 U.S. 184 (2002), that the elements of the defi25 nition ‘‘need to be interpreted strictly to create a deVerDate Aug 31 2005 06:37 Jul 27, 2007 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1881.IS S1881

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1 manding standard for qualifying as disabled’’ and, 

2 consistent with that view, has narrowed the applica3 tion of the definition in various ways; and 

4 (7) contrary to explicit congressional intent ex5 pressed in the committee reports for the Americans 

6 with Disabilities Act of 1990, the Supreme Court 

7 has eliminated from the Act’s coverage individuals 

8 who have mitigated the effects of their impairments 

9 through the use of such measures as medication and 

10 assistive devices. 

11 (b) PURPOSE.—The purposes of this Act are— 

12 (1) to effect the Americans with Disabilities Act 

13 of 1990’s objectives of providing ‘‘a clear and com14 prehensive national mandate for the elimination of 

15 discrimination’’ and ‘‘clear, strong, consistent, en16 forceable standards addressing discrimination’’ by 

17 restoring the broad scope of protection available 

18 under the Americans with Disabilities Act of 1990; 

19 (2) to respond to certain decisions of the Su20 preme Court, including Sutton v. United Air Lines, 

21 Inc., 527 U.S. 471 (1999), Murphy v. United Parcel 

22 Service, Inc., 527 U.S. 516 (1999), Albertson’s, Inc. 

23 v. Kirkingburg, 527 U.S. 555 (1999), and Toyota 

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

25 534 U.S. 184 (2002), that have narrowed the class 


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1 of people who can invoke the protection from dis2 crimination that the Americans with Disabilities Act 

3 of 1990 provides; and 

4 (3) to reinstate the original congressional intent 

5 regarding the definition of disability in the Ameri6 cans with Disabilities Act of 1990 by clarifying that 

7 the protection of that Act is available for all individ8 uals who are— 

9 (A) subjected to adverse treatment based 

10 on an actual or perceived impairment, or a 

11 record of impairment; or 

12 (B) adversely affected— 

13 (i) by prejudiced attitudes, such as 

14 myths, fears, ignorance, or stereotypes con15 cerning disability or particular disabilities; 

16 or 

17 (ii) by the failure to remove societal 

18 and institutional barriers, including com19 munication, transportation, and architec20 tural barriers, or the failure to provide rea21 sonable modifications to policies, practices, 

22 and procedures, reasonable accommoda23 tions, and auxiliary aids and services. 


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1 SEC. 3. FINDINGS IN AMERICANS WITH DISABILITIES ACT 

2 OF 1990. 

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

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

5 (1) by striking paragraph (1) and inserting the 

6 following: 

7 ‘‘(1)(A) physical and mental disabilities are nat8 ural parts of the human experience that in no way 

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

10 aspects of society; and 

11 ‘‘(B)(i) people with physical or mental disabil12 ities having the talent, skills, abilities, and desire to 

13 participate in society are frequently precluded from 

14 doing so because of discrimination; and 

15 ‘‘(ii) other people who have a record of a dis16 ability or are regarded as having a disability have 

17 also been subjected to discrimination;’’; and 

18 (2) by striking paragraph (7) and inserting the 

19 following: 

20 ‘‘(7)(A) individuals with disabilities have been 

21 subjected to a history of purposeful unequal treat22 ment, have had restrictions and limitations imposed 

23 upon them because of their disabilities, and have 

24 been relegated to positions of political powerlessness 

25 in society; and 


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1 ‘‘(B) classifications and selection criteria that 

2 exclude individuals with disabilities should be strong3 ly disfavored, subjected to skeptical and meticulous 

4 examination, and permitted only for highly compel5 ling reasons, and never on the basis of prejudice, 

6 myths, irrational fears, ignorance, or stereotypes 

7 about disability;’’. 

8 SEC. 4. DISABILITY DEFINED. 

9 Section 3 of the Americans with Disabilities Act of 

10 1990 (42 U.S.C. 12102) is amended— 

11 (1) by striking paragraph (2) and inserting the 

12 following: 

13 ‘‘(2) DISABILITY.— 

14 ‘‘(A) IN GENERAL.—The term ‘disability’ 

15 means— 

16 ‘‘(i) a physical or mental impairment; 

17 ‘‘(ii) a record of a physical or mental 

18 impairment; or 

19 ‘‘(iii) being regarded as having a 

20 physical or mental impairment. 

21 ‘‘(B) RULE OF CONSTRUCTION.— 

22 ‘‘(i) DETERMINATION OF IMPAIR23 MENT.—The determination of whether an 

24 individual has a physical or mental impair25 ment shall be made without regard to— 


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1 ‘‘(I) whether the individual uses 

2 a mitigating measure; 

3 ‘‘(II) the impact of any miti4 gating measures the individual may or 

5 may not be using; 

6 ‘‘(III) whether any manifestation 

7 of the impairment is episodic; or 

8 ‘‘(IV) whether the impairment is 

9 in remission or latent. 

10 ‘‘(ii) MITIGATING MEASURES.—The 

11 term ‘mitigating measure’ means any 

12 treatment, medication, device, or other 

13 measure used to eliminate, mitigate, or 

14 compensate for the effect of an impair15 ment, and includes prescription and other 

16 medications, personal aids and devices (in17 cluding assistive technology devices and 

18 services), reasonable accommodations, and 

19 auxiliary aids and services.’’; and 

20 (2) by redesignating paragraph (3) as para21 graph (7) and inserting after paragraph (2) the fol22 lowing: 

23 ‘‘(3) MENTAL IMPAIRMENT.—The term ‘men24 tal’, used with respect to an impairment, means any 

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1 tardation, organic brain syndrome, emotional or 

2 mental illness, or specific learning disability. 

3 ‘‘(4) PHYSICAL IMPAIRMENT.—The term ‘phys4 ical’, used with respect to an impairment, means any 

5 physiological disorder or condition, cosmetic dis6 figurement, or anatomical loss affecting 1 or more of 

7 the following body systems: 

8 ‘‘(A) Neurological. 

9 ‘‘(B) Musculoskeletal. 

10 ‘‘(C) Special sense organs. 

11 ‘‘(D) Respiratory, including speech organs. 

12 ‘‘(E) Cardiovascular. 

13 ‘‘(F) Reproductive. 

14 ‘‘(G) Digestive. 

15 ‘‘(H) Genitourinary. 

16 ‘‘(I) Hemic and lymphatic. 

17 ‘‘(J) Skin. 

18 ‘‘(K) Endocrine. 

19 ‘‘(5) RECORD OF A PHYSICAL OR MENTAL IM20 PAIRMENT.—The term ‘record of a physical or men21 tal impairment’ means a history of, or a 

22 misclassification as having, a physical or mental im23 pairment. 

24 ‘‘(6) REGARDED AS HAVING A PHYSICAL OR

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1 ing a physical or mental impairment’ means per2 ceived or treated as having a physical or mental im3 pairment, whether or not the individual involved has 

4 an impairment.’’. 

5 SEC. 5. ADVERSE ACTION. 

6 The Americans with Disabilities Act of 1990 is 

7 amended by inserting after section 3 (42 U.S.C. 12102) 

8 the following: 

9 ‘‘SEC. 4. ADVERSE ACTION. 

10 ‘‘An adverse action taken by an entity covered under 

11 this Act against an individual because of that individual’s 

12 use of a mitigating measure or because of a side effect 

13 or other consequence of the use of such a measure shall 

14 constitute discrimination under this Act.’’. 

15 SEC. 6. DISCRIMINATION ON THE BASIS OF DISABILITY. 

16 Section 102 of the Americans with Disabilities Act 

17 of 1990 (42 U.S.C. 12112) is amended— 

18 (1) in subsection (a), by striking ‘‘against a 

19 qualified individual with a disability because of the 

20 disability of such individual’’ and inserting ‘‘against 

21 an individual on the basis of disability’’; and 

22 (2) in subsection (b), in the matter preceding 

23 paragraph (1), by striking the term ‘‘discriminate’’ 

24 and inserting ‘‘discriminate against an individual on 

25 the basis of disability’’. 


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1 SEC. 7. QUALIFIED INDIVIDUAL. 

2 Section 103(a) of the Americans with Disabilities Act 

3 of 1990 (42 U.S.C. 2113(a)) is amended by striking ‘‘that 

4 an alleged’’ and inserting ‘‘that— 

5 ‘‘(1) the individual alleging discrimination 

6 under this title is not a qualified individual with a 

7 disability; or 

8 ‘‘(2) an alleged’’. 

9 SEC. 8. RULE OF CONSTRUCTION. 

10 Section 501 of the Americans with Disabilities Act 

11 of 1990 (42 U.S.C. 12201) is amended by adding at the 

12 end the following: 

13 ‘‘(e) BROAD CONSTRUCTION.—In order to ensure 

14 that this Act achieves the purpose of providing a com15 prehensive prohibition of discrimination on the basis of 

16 disability and to advance the remedial purpose of this Act, 

17 the provisions of this Act shall be broadly construed. 

18 ‘‘(f) REGULATIONS.— 

19 ‘‘(1) IN GENERAL.—Not later than 180 days 

20 after the date of enactment of the Americans with 

21 Disabilities Act Restoration Act of 2007— 

22 ‘‘(A) the Attorney General, the Equal Em23 ployment Opportunity Commission, and the 

24 Secretary of Transportation shall issue regula25 tions described in sections 106, 204, 223, 229, 

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1 tions that implement sections 3 and 4, to carry 

2 out the corresponding provisions of this Act, as 

3 this Act is amended by the Americans with Dis4 abilities Act Restoration Act of 2007; and 

5 ‘‘(B) the Architectural and Transportation 

6 Barriers Compliance Board shall issue supple7 mentary guidelines described in section 504, to 

8 supplement the existing Minimum Guidelines 

9 and Requirements for Accessible Design for 

10 purposes of titles II and III of this Act, as this 

11 Act is amended by the Americans with Disabil12 ities Act Restoration Act of 2007. 

13 ‘‘(2) CONSTRUCTION.—Nothing in this sub14 section shall be construed to limit the authority of 

15 an officer or agency described in paragraph (1) to 

16 issue regulations or guidelines under any other pro17 vision of this Act, other than this subsection. 

18 ‘‘(g) DEFERENCE TO REGULATIONS AND GUID19 ANCE.—Duly issued Federal regulations and guidance for 

20 the implementation of the Americans with Disabilities Act 

21 of 1990, including provisions implementing and inter22 preting the definition of disability, shall be entitled to def23 erence by administrative agencies or officers, and courts, 

24 deciding an issue in any action brought under this Act.’’. 

Æ 


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