[Senate Hearing 110-991]
[From the U.S. Government Publishing Office]
S. Hrg. 110-991
ROUNDTABLE DISCUSSION: DETERMINING THE PROPER SCOPE OF COVERAGE FOR THE
AMERICANS WITH DISABILITIES ACT
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
EXAMINING THE AMERICANS WITH DISABILITIES ACT (PUBLIC LAW 101-336),
FOCUSING ON WAYS TO DETERMINE THE PROPER SCOPE OF ITS COVERAGE
__________
JULY 15, 2008
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Ilyse Schuman, Minority Staff Director and Chief Counsel
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, JULY 15, 2008
Page
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, opening
statement...................................................... 1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
opening statement.............................................. 2
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
statement...................................................... 4
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
statement...................................................... 5
Feldblum, Chai, Professor, Federal Legislative Clinic, Georgetown
University Law Center, Washington, DC.......................... 5
Prepared statement........................................... 6
McClure, Carey, Citizen, Griffin, GA............................. 12
Prepared statement........................................... 13
Bagenstos, Samuel R., Professor of Law, Washington University
School of Law, St. Louis, MO................................... 15
Prepared statement........................................... 16
Simon, Jo Anne, Esq., The Law Office of Jo Anne Simon, Brooklyn,
NY............................................................. 19
Prepared statement........................................... 20
Eastman, Michael, Employment Policy Director, U.S. Chamber of
Commerce, Washington, DC....................................... 25
Gamm, Sue, Primary Consultant, Public Consulting Group, Chicago,
IL............................................................. 26
Hartle, Terry W., Senior Vice President, American Council on
Education, Washington, DC...................................... 27
Grossman, Andrew, Senior Legal Policy Analyst, Heritage
Foundation, Washington, DC..................................... 28
Prepared statement........................................... 29
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Obama, Hon. Barack, a U.S. Senator from the State of Illinois 52
Duke University.............................................. 52
(iii)
ROUNDTABLE DISCUSSION: DETERMINING
THE PROPER SCOPE OF COVERAGE FOR
THE AMERICANS WITH DISABILITIES ACT
----------
TUESDAY, JULY 15, 2008
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington DC.
The committee met, pursuant to notice, at 10:00 a.m., in
Room SD-106, Dirksen Senate Office Building, Hon. Tom Harkin,
presiding.
Present: Senators Harkin, Murray, Enzi, Hatch, and Roberts.
Opening Statement of Senator Harkin
Senator Harkin. The roundtable in the Committee on Health,
Education, Labor, and Pensions will come to order.
Good morning, and I welcome everyone to our second hearing
on the widespread problem of individuals with disabilities
being denied protection under the Americans with Disabilities
Act of July 26, 1990.
Back in November we had an excellent hearing to examine the
U.S. Supreme Court rulings that have limited the scope of the
ADA, contrary, I believe, to the clear intent of Congress when
we passed the law 18 years ago this month. These rulings have
led to the current unacceptable situation where people, who by
any common sense standard have disabilities, including people
with amputated limbs, intellectual disabilities, epilepsy, or
cancer are not covered by the Americans with Disabilities Act.
I have a chart here, and it shows, on the left, covered in the
Rehab Act of 1973 and also the ADA of 1990, amputation,
epilepsy, muscular dystrophy, diabetes, all of those. Under the
ADA today, those same ones are not a disability. So that's what
has happened with these U.S. Supreme Court decisions.
In the November hearing we reached consensus on a need to
address this in a very robust way and I am very pleased that a
number of very prominent employer organizations took this to
heart. They have devoted a lot of time and effort and good
faith to negotiate compromised legislation for groups
advocating disability rights. I want to commend these
negotiators publicly for putting an enormous amount of thought
and effort into the bill that recently passed in the House by
an overwhelming majority.
At the same time I want to caution supporters of the House
bill that in the Senate serious procedural and substantive
concerns have been raised with that bill.
While we welcome the expertise and insights of advocates on
both sides, it is the role of the Senate to write the
legislation to pass in this body, and that's what we will be
doing now. Today's forum is designed to give members of this
committee an opportunity to air their concerns with the bill
passed by the House and to allow organizations not included in
the negotiations, but nonetheless subject to the ADA, to fully
express their concerns about the House version.
I want us to work in a cooperative bipartisan fashion.
Following today's hearing I want to work quickly to produce a
Senate bill that gets the job done by returning the protections
of the ADA to all individuals with disabilities. Our aim is to
craft the best possible fix, one that could win broad support
here in the Senate, and among those impacted by the law.
Let me be clear: The ADA is a broad civil rights statute
that is intended to provide protection to all individuals with
disabilities in the workplace, in schools, across the entire
spectrum of our society, and that is not going to change.
I look forward to hearing the viewpoints of all
participants this morning. I look forward to working with all
of you to restore the full promise of the ADA--equality of
opportunity, full participation, independent living and
economic self-sufficiency.
Let me just mention a few words about today's format. It's
a hearing roundtable. Our intent is to be less formal than a
usual hearing. It will be on the record. After we hear from
Senator Enzi we will offer the panel the opportunity to speak
for a few minutes. We have your written testimony and that will
be made a part of the record. There are a lot of participants
here and I would rather have an open discussion back and forth
rather than just sitting here and listening to formal
statements; and, by the way, we have a vote at 11 o'clock which
I had not anticipated.
Following these introductions, I will ask a question of the
panelists and other witnesses can join in the discussion. Other
Senators can intervene as they see fit to ask questions or to
make points.
Again, I ask you to keep your answers brief, to the point,
and be respectful of your fellow witnesses. With that I will
turn to our Ranking Member, Senator Enzi.
Opening Statement of Senator Enzi
Senator Enzi. Thank you for holding this very important
roundtable on the ADA Amendment Act; and, I appreciate the fact
that you are going through the usual Senate process. I have
noted that almost every bill that passes the U.S. Senate goes
through this process and those that avoid it appear to be kind
of pushing on the edge of something and often result in a lot
of debate and not much progress. So I appreciate you taking
this approach.
I learned about process on my very first bill in the
Wyoming State legislature. I was working what I thought was a
very simple issue, a little three-sentence bill on
unemployment. And when it went to the committee in the House it
got three amendments. When it went to the House floor it got
two more amendments. Then, it went through the Senate and got
two more amendments in the committee. What I noted through this
whole process was that every one of those amendments improved
the bill. That's why we have 535 people in Congress--the
purpose is to get as many viewpoints as possible.
I've also noted that in any hearing I have ever done and
roundtable that I have ever done, there's always been someone
in the audience who knew where the loop holes were but didn't
share it until after they had taken advantage of it. I would
hope that wouldn't be the case, but I notice that it usually
is. But I also appreciate you doing this roundtable format.
It's something we started doing about 3 years ago and we found
it gets a lot more information out than the standard hearing.
With a standard hearing, the chairman would get to pick all
the participants except for one, I would get to pick the other
one. Then both sides would show up and ask tough, really clever
questions. And instead of tough, clever questions, what we want
is your viewpoint and your interaction with the other people
who also have viewpoints because you are the experts that we've
invited to do this, and everybody that has been invited has
been invited from both sides, not just from one side.
So we recognize you as experts and count on you for a lot
of information that will make sure that we are getting it
right.
The Americans with Disabilities Act was signed into law 18
years ago by President George Herbert Walker Bush after a
tremendous amount of bipartisan negotiation. Many of our fellow
committee members, Senator Hatch, Senator Harkin, and Senator
Kennedy were among those who played critical roles in that
achievement. Today we are taking steps that would re-fashion
the ADA, the bill would change the defined terms that were
negotiated in 1990 and cede the responsibility of defining
those terms to the courts.
Although the impetus of this legislation may be to re-
direct judicial interpretations of the ADA, some of today's
participants will point out consequences in the legislation
that are broader and may not have been fully considered.
We have several members of the education community here
today to explain how the bill would alter their current
policies, practices and budgets with regards to students with
disabilities. As Senators on the committee with jurisdiction
over education, we have a special obligation to listen to those
concerns.
This is a very important piece of legislation that will
impact millions of Americans. We owe all of those workers,
businesses, educators, students and others careful
consideration of the implications of this bill. That's our job
as legislators and that's why the committee process is so
important.
There is no doubt that the ADA has improved the lives of
people living with disabilities, but it also benefits all of
society because it allows the talents and abilities of many
more people to be shared.
However, I have been concerned for sometime that the
employment rate for Americans with disabilities is not as high
as it should or could be, and I want to remind everybody here
today that the ADA is not the simple solution to this problem.
I have been working to revitalize the Federal employment
and training programs for persons with significant disabilities
and recently re-introduced the Javits-Wagner-O'Day and
Randolph-Sheppard Modernization Act of 2008. The bill would
create much more flexibility to provide real job training and
real skill development so persons with disabilities can develop
marketable skills and make meaningful career choices.
I'm glad to see the hard work and consensus building that
has gone on with respect to the ADA bill, and I would like to
see the same focus applied to other legislation which could
make significant strides towards improving the employment rates
for people with disabilities.
I appreciate you holding this hearing and I appreciate your
using the roundtable format. I think it will give us a lot of
information and we ought to get on with that.
Senator Harkin. Thank you very much Senator Enzi.
Senator Hatch.
Statement of Senator Hatch
Senator Hatch. Well, thank you, Mr. Chairman, I won't say
much. I am very interested in this. I want to compliment the
Chairman for being a profound leader in this matter, back when
we passed the original bill. I intend to help him as much as I
can.
There have been some issues that have been raised that I
think must be looked at. I will be doing everything I can to
try and help resolve some of these issues and I hope the
distinguished Chairman would like to work with me on these,
because I would like to link arms again. I feel very deeply
about the disability community and about persons who suffer
from disabilities, and I do think there are times when the U.S.
Supreme Court has narrowed the definition more than it needed
to do. I will be working with the Chairman and hopefully we can
come to a conclusion that will bring everybody together in this
Congress.
If we don't resolve some of these problems then I think it
will be very difficult to pass this bill this year. And I
intend to see that we resolve them. I know my friend from Iowa
and certainly my friend from Wyoming will work diligently with
me and others to try and do so. Thank you, sir.
Senator Harkin. Thank you, Senator Hatch. That brings back
a lot of fond memories of our work together in the 1980's on
this bill.
Senator Hatch. Sure does.
Senator Harkin. We did a lot of work together at that time.
A lot of people were involved in that. But you remember the
long roads we went down. I mean where we started and the give
and take over about a 4-year period of time, but we finally got
a bill, that as you pointed out, brought broad consensus and
that's the best way to do things.
Senator Hatch. Mr. Chairman, I would like to just add, I
think the House has really tried to do what is right here. I
think they deserve a lot of credit. There are some issues that
have been raised that still deserve some consideration. I think
unless we resolve some of those issues it is going to be very
difficult to do what you and I know needs to be done.
Senator Harkin. That's the legislative process.
Senator Hatch. You bet.
Senator Harkin. We'll get it done.
Senator Murray.
Statement of Senator Murray
Senator Murray. I am sorry for being late. I don't want to
delay getting to our witnesses. Let me say for the record, I
really appreciate the tremendous work you have done over the
years for the disability community. I think we are a great
country. We are a great country if every individual has the
opportunity to go to work and be who they can be. We have an
obligation as the government to ensure that that opportunity is
there and that's your goal and I share that with you and I look
forward to hearing from the witnesses. We need to make sure,
with the court decisions that we have seen occurring over the
years, that we do make the right decisions so that individuals
with disabilities can feel they can contribute and be protected
by our laws.
Senator Harkin. Thank you very much, Senator Murray.
We will take a couple minutes and go around. We will start
with Professor Feldblum and take a couple of minutes or so and
then Mr. McClure and then continue in that order.
We have a vote at 11 o'clock and I apologize. There is
nothing we can do about that. We may come back after that,
depending upon where we are at that point of time. All of your
statements will be made a part of the record in their entirety.
I just ask you to speak for a couple of minutes and then let's
open it up for panel discussion.
Professor Feldblum.
STATEMENT OF CHAI FELDBLUM, PROFESSOR, FEDERAL LEGISLATION
CLINIC, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC
Ms. Feldblum. Thank you, Senator Harkin, Senator Enzi,
Senator Hatch, Senator Murray. Exactly 8 months ago I testified
before this committee in support of S. 1881, the Americans with
Disabilities Restoration Act, as originally introduced. In both
my written and oral testimony and in several exchanges with you
Senator Harkin during that hearing, I defended the broad terms
of that bill as reflecting congressional intent during passage
of the ADA and as appropriate public policy. I continue to
stand by those positions.
However, I also believe that the ADA Amendments Act of 2008
as passed by the House last month represents a legitimate and
fair compromise between the interests of people with
disabilities and the interests of other entities under the law.
To meet the needs of entities covered under the law, an
impairment must substantially limit a major life activity as
was put in the original ADA and as was not the case in S. 1881.
To meet the needs of people with disabilities, mitigating
measures are explicitly not to be taken into account in
determining whether an impairment substantially limits a major
life activity and the courts strict reading of that critical
term ``substantially limit'' is explicitly rejected.
While the cases that narrowed the definition of disability
arose in the employment context, as a legal matter those narrow
standards apply across the board to all entities covered under
the law. For that reason, any modification to the definition
must equally apply to and be workable for all entities covered
under the law.
I believe that the ADA Amendments Act before you today does
exactly that. Thank you, and I look forward to the exchange.
[The prepared statement of Ms. Feldblum follows:]
Prepared Statement of Chai R. Feldblum
Mr. Chairman and members of the committee, I am pleased to testify
before you today on the Americans with Disabilities Act (ADA). My name
is Chai Feldblum, and I am a Professor of Law and Director of the
Federal Legislation Clinic at Georgetown University Law Center.
The lawyers and students at the Federal Legislation Clinic have
provided pro bono legislative lawyering services to the Epilepsy
Foundation over the past 2 years in support of its efforts to advance
the ADA Restoration Act. Today, however, I am testifying on my own
behalf as an expert on the ADA.
From 1988 to 1990, while working for the American Civil Liberties
Union, I served as one of the lead legal advisors to the disability and
civil rights communities in the drafting and negotiating of the ADA.
From January 2008 until now, I have been actively involved in
discussions between representatives of the disability and business
communities on S. 1881 and H.R. 3195, the ADA Restoration Acts as
introduced, to consider changes that would enable members of the
business community to support those bills.
In this submitted testimony, I provide a brief overview of the
bipartisan support that propelled passage of the ADA in 1990, describe
how Congress discussed the definition of disability in the ADA in its
committee reports, and explain how the U.S. Supreme Court narrowed that
definition of disability. I then describe the ADA Amendments Act as
passed by the House of Representatives in June 2008; the obligations of
employers under the House-passed bill as compared to current law; and
whether the standard for determining whether an individual is
``disabled'' should be more clearly defined than it is in the House-
passed bill. While other witnesses will address the implications of the
House-passed bill for schools and universities in their written
testimony, I am happy to answer any questions on those issues.
i. the bi-partisan enactment of the ada
A first version of the ADA was introduced in April 1988 by Senators
Lowell Weicker and Tom Harkin and 12 other cosponsors in the Senate,
and by Congressman Tony Coelho and 45 cosponsors in the House of
Representatives.\1\ In May 1989, a second version of the ADA was
introduced by Senators Tom Harkin, Edward Kennedy, Robert Dole, Orrin
Hatch and 30 cosponsors in the Senate, and by Congressman Steny Hoyer
and 45 cosponsors in the House of Representatives.\2\ This version of
the bill was the result of extensive discussions with a wide range of
interested parties, including members of the disability community, the
business community, and the first Bush administration.\3\
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\1\ H.R. 4498, 100th Cong., 2d Sess., 134 Cong. Rec. H2757 (daily
ed. Apr. 29, 1988) (introduction of H.R. 4498); S. 2345, 100th Cong.,
2d Sess., 134 Cong. Rec. S5089 (daily ed. Apr. 28, 1988) (introduction
of S. 2345).
\2\ H.R. 2273, 101st Cong., 1st Sess., 135 Cong. Rec. H1791 (daily
ed. May 9, 1989); S. 933, 101st Cong., 1st Sess., 135 Cong. Rec. S4984-
98 (daily ed. May 9, 1989).
\3\ See Chai R. Feldblum, Medical Examinations and Inquiries Under
the Americans with Disabilities Act: A View from the Inside, 64 Temple
Law Review 521, 521-532 (1991) (providing a brief overview of passage
of the ADA, including a brief description of the various stages of
negotiation on the bill).
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Negotiations on the ADA continued within each committee that
reviewed the bill and, in each case, the negotiations resulted in
broad, bipartisan support of the legislation. The Senate Committee on
Labor and Human Resources favorably reported the bill by a vote of 16-0
\4\; the House Committee on Education and Labor favorably reported the
bill by a vote of 35-0 \5\; the House Committee on Energy and Commerce
favorably reported the bill by a vote of 40-3 \6\; the House Committee
on Public Works and Transportation favorably reported the bill by a
vote of 45-5 \7\; and the House Committee on the Judiciary favorably
reported the bill by a vote of 32-3.\8\
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\4\ S. Rep. No. 101-116 at 1 (1989).
\5\ H.R. Rep. No. 101-485, pt. 2, at 50 (1990).
\6\ H.R. Rep. No. 101-485, pt. 4, at 29 (1990).
\7\ H.R. Rep. No. 101-485, pt. 1, at 52 (1990).
\8\ H.R. Rep. No. 101-485, pt. 3, at 25 (1990).
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After being reported out of the various committees, the ADA passed
the Senate by a vote of 76-8 in September 1989 and the House of
Representatives by a vote of 403-20 in May 1990.\9\ Both Houses of
Congress subsequently passed the conference report by large margins as
well: 91-6 in the Senate and 377-28 in the House of
Representatives.\10\
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\9\ 135 Cong. Rec. S10803 (daily ed. Sept. 7, 1989); 136 Cong. Rec.
H2638 (daily ed. May 22, 1990).
\10\ 136 Cong. Rec. S9695 (daily ed. July 13, 1990); 136 Cong. Rec.
H4629 (daily ed. July 12, 1990).
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On July 26, 1990, President George H.W. Bush signed the ADA into
law, stating:
``[N]ow I sign legislation which takes a sledgehammer to [a]
. . . wall, one which has for too many generations separated
Americans with disabilities from the freedom they could
glimpse, but could not grasp. Once again, we rejoice as this
barrier falls for claiming together we will not accept, we will
not excuse, we will not tolerate discrimination in
America.''\11\
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\11\ Remarks of President George H.W. Bush at the Signing of the
Americans with Disabilities Act of 1990 (July 26, 1990), available at
http://www.eeoc.gov/ada/bushspeech.html.
Standing together, leaders from both parties described the ADA as
``historic,'' ``landmark,'' and an ``emancipation proclamation for
people with disabilities.''\12\
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\12\ According to President George H.W. Bush, the ADA was a
``landmark'' law, an ``historic new civil rights Act . . . the world's
first comprehensive declaration of equality for people with
disabilities.'' See id. Senator Orrin G. Hatch declared that the ADA
was ``historic legislation'' 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.''
Senator Edward M. Kennedy called the ADA a ``bill of rights'' and
``emancipation proclamation'' for people with disabilities. See
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.
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The purpose of the original legislation 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.\13\ It was Congress' hope and intention that people
with disabilities would be protected from discrimination in the same
manner as those who had experienced discrimination on the basis of
race, color, sex, national origin, religion, or age.\14\
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\13\ See Americans with Disabilities Act Sec. 2(b), 42 U.S.C.
Sec. 12101(b) (2007).
\14\ 42 U.S.C. Sec. 12101 (a), (b).
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But that did not happen. In recent years, the U.S. Supreme Court
has restricted the reach of the ADA's protections by narrowly
construing the definition of disability contrary to congressional
intent. As a result, people with a wide range of impairments whom
Congress intended to protect, including people with cancer, epilepsy,
diabetes, hearing loss, multiple sclerosis, HIV infection, intellectual
disabilities, post-traumatic stress disorder (PTSD), and many other
impairments, are routinely found not to be ``disabled'' and therefore
not covered by the ADA.
As demonstrated by the legislative history of the ADA, Congress
never intended the law's definition to be interpreted in such a
restrictive fashion.
ii. congressional intent behind the ada's definition of disability
When writing the ADA that was introduced in 1989, Congress borrowed
the definition of ``disability'' from Sections 501, 503 and 504 of the
Rehabilitation Act of 1973, a predecessor civil rights statute for
people with disabilities that covered the Federal Government, Federal
contractors, and recipients of Federal financial assistance. For
purposes of Title V of the Rehabilitation Act, ``handicap'' was defined
as: (1) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual; (2) a record
of such an impairment; or (3) being regarded as having such an
impairment.\15\
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\15\ 29 U.S.C. Sec. 705(20)(B) (2007); See Americans with
Disabilities Act, 42 U.S.C. Sec. 12101(2) (2007). At the time the ADA
was being drafted, section 504 used the term ``handicap'' rather than
``disability.'' Section 504 has since been amended to use the term
``disability.'' The definition of ``handicap'' under section 504 and of
``disability'' under the ADA is identical.
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For 15 years, the courts had interpreted this definition to cover a
wide range of physical and mental impairments, including epilepsy,
diabetes, intellectual and developmental disabilities, multiple
sclerosis, PTSD, and HIV infection.\16\ Indeed, in School Board of
Nassau County v. Arline, the U.S. Supreme Court explicitly acknowledged
that section 504's ``definition of handicap is broad,'' and that by
extending the definition to cover those ``regarded as'' handicapped,
Congress intended to cover those who are not limited by an actual
impairment but are instead limited by ``society's accumulated myths and
fears about disability and disease.''\17\
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\16\ See, e.g., Local 1812, Am. Fed'n. of Gov't Employees v. U.S.,
662 F. Supp. 50, 54 (D.D.C. 1987) (person with HIV disabled); Reynolds
v. Brock, 815 F.2d 571, 573 (9th Cir. 1987) (person with epilepsy
disabled); Flowers v. Webb, 575 F. Supp. 1450, 1456 (E.D.N.Y. 1983)
(person with intellectual and developmental disabilities disabled);
Schmidt v. Bell, No. 82-1758, 1983 WL 631, at *10 (E.D. Pa. Sept. 9,
1983) (person with PTSD disabled); Bentivegna v. U.S. Dep't of Labor,
694 F.2d 619, 621 (9th Cir. 1982) (person with diabetes disabled);
Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1376 (10th Cir.
1981) (person with multiple sclerosis disabled). See generally Chai R.
Feldblum, Definition of Disability Under Federal Anti-Discrimination
Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J.
Emp. & Lab. L. 91, 128 (2000) (hereinafter ``Definition of
Disability'') (``[A]lthough there had been . . . a few adverse judicial
opinions under section 504 that had rejected coverage for plaintiffs
with some impairments, those opinions were the exception, rather than
the rule, in litigation under the Rehabilitation Act.'')
\17\ See School Bd. of Nassau County v. Arline, 480 U.S. 273, 284
(1987).
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When the ADA was enacted, Congress consistently referred to court
interpretations of ``handicap'' under section 504 as its model for the
scope of ``disability'' under the ADA. For example, the Senate
Committee on Labor and Human Resources noted that: ``the analysis of
the term `individual with handicaps' by the Department of Health,
Education and Welfare in the regulations implementing section 504 . . .
apply to the definition of the term ``disability'' included in this
legislation.''\18\
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\18\ S. Rep. No. 101-116 at 21 (1989).
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Second, the committee reports explicitly stated that mitigating
measures should not be taken into account in determining whether a
person has a ``disability'' for purposes of the ADA. As the Senate
Committee on Labor and Human Resources put it:
A person is considered an individual with a disability for
purposes of the first prong of the definition when the
individual's important life activities are restricted as to the
conditions, manner, or duration under which they can be
performed in comparison to most people. . . . [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.\19\
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\19\ S. Rep. No. 101-116 at 121 (1989).
Finally, the committee reports specifically referenced the breadth
of the interpretation offered by the U.S. Supreme Court in the Arline
decision with regard to the third prong of the definition of
disability, the ``regarded as'' prong. As the Senate Committee on Labor
and Human Resources Report summarized the coverage under the third
prong: ``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 toward 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.'' \20\
---------------------------------------------------------------------------
\20\ S. Rep. No. 101-116 at 24 (1989); see also H.R. Rep. No. 101-
485, pt. 2, at 53 (1990) (discussing Arline).
---------------------------------------------------------------------------
As evident from the ADA's legislative history, Congress' decision
to adopt section 504's definition of disability was a deliberate
decision to cover the same wide group of individuals who had been
covered under that existing law. Congress expected that the definition
of ``disability'' would be interpreted as broadly under the ADA as it
had been interpreted under the previous disability rights law for over
15 years.
iii. judicial narrowing of coverage under the ada
The expectations of Congress with regard to the ADA have not been
met. Over the past several years, the U.S. Supreme Court and lower
courts have narrowed coverage by interpreting each and every component
of the ADA's definition of disability in a strict and constrained
fashion. This has resulted in the exclusion of many persons that
Congress intended to protect.\21\
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\21\ See testimony and appendices submitted by Chai R. Feldblum to
the Senate Health, Education, Labor, and Pensions Committee, Hearing on
Restoring Congressional Intent and Protections under the ADA, Nov. 15,
2007. Appendix A to that testimony notes the coverage of people under
section 504 as compared to the ADA and Appendix B sets out case stories
of people denied coverage under the ADA.
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The U.S. Supreme Court first narrowed coverage in a trio of cases
decided in June 1999, ruling that mitigating measures such as
medication, prosthetics, hearing aids, other auxiliary devices, diet
and exercise, or any other treatment must be considered in determining
whether an individual's impairment substantially limits a major life
activity.\22\ Despite the fact that the committee reports from the
Senate Labor and Human Resources Committee, the House Judiciary
Committee, and the House Education and Labor Committee had all stated
that mitigating measures were not to be taken into account; that both
the EEOC and DOJ had issued guidance that mitigating measures were not
to be taken into account; and that eight Circuit Courts of Appeal had
followed that agency guidance, the U.S. Supreme Court concluded that
evaluating individuals ``in their hypothetical uncorrected state''
would be ``an impermissible interpretation of the ADA'' based on the
plain language of the statute.\23\
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\22\ Sutton v. United Airlines, Inc., 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).
\23\ Sutton, 527 U.S. at 482. See Feldblum Testimony, supra n. 21,
at 10-15 for further description of the trio of U.S. Supreme Court
cases and the Court's reasoning.
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The U.S. Supreme Court's requirement that courts consider
mitigating measures has created an unintended paradox: people with
serious health conditions, like epilepsy and diabetes, who are
fortunate enough to find treatment that make them more capable and
independent and thus more able to work, are often not protected by the
ADA because the limitations arising from their impairments are not
considered substantial enough. Ironically, the better a person manages
his or her medical condition, the less likely that person is to be
protected from discrimination, even if an employer admits that he or
she has dismissed the person because of that person's (mitigated)
condition.
The U.S. Supreme Court also narrowed coverage, in 1999, by changing
the standard under the third prong of the definition of disability--the
``regarded as'' prong that was intended to cover individuals with
impairments of any level of severity (or with no impairments at all)
based on how such individuals were treated by an entity covered under
the law. Again ignoring both committee reports and EEOC guidance, the
U.S. Supreme Court formulated a new and almost impossible standard to
meet for any individual seeking coverage under the third prong. The
Court's approach essentially required individuals to divine and prove
an employer's subjective state of mind. Not only did the individual
have to demonstrate that the employer believed that the individual had
an impairment that prevented him or her from working for that employer
in that job, the individual also had to show that the employer thought
that the impairment would prevent the individual from performing a
broad class of jobs for other employers. As it is safe to assume that
most employers do not regularly consider the panoply of other jobs that
prospective or current employees could or could not perform--and
certainly do not often create direct evidence of such considerations--
the individual's burden became essentially insurmountable except in
rare cases.
Finally, the Court made the situation worse 3 years later in
another decision regarding the definition of disability. In 2002, the
U.S. Supreme Court ruled in Toyota Motor Manufacturing, Kentucky, Inc.
v. Williams that the words ``substantially limits'' and ``major life
activities'' were to be interpreted strictly to create a ``demanding
standard for qualifying as disabled.'' \24\ The Court also stated that
`` `[m]ajor' in the phrase `major life activities' means important,''
and so ``major life activities'' refers to ``those activities that are
of central importance to daily life,'' including ``household chores,
bathing, and brushing one's teeth.'' \25\ As a result of this ruling,
lower courts now consistently require people alleging discrimination
under the ADA to show that their impairments prevent or severely
restrict them from doing activities that are of central importance to
most people's daily lives.
---------------------------------------------------------------------------
\24\ 534 U.S. 184, 197 (2002).
\25\ Id. at 197, 201-02.
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In earlier testimony delivered to this committee, I described 16
cases in which individuals who believed they had been discriminated
against because of their physical or mental impairments were never
given the chance to prove their cases because the courts had ruled they
were not ``disabled enough'' to be covered under the ADA. These results
occurred because the mitigating measures used by the individual meant
that he or she was no longer substantially limited in a major life
activity; or because the individual could not meet the new standard
under the ``regarded as'' prong; or because the courts deemed the
individual's impairment not to be sufficiently severe.\26\ These cases
all dealt with individuals who should have been given an opportunity to
make the case that their impairments had been the basis for a covered
entity's discriminatory acts and that they were otherwise qualified for
the job.
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\26\ See Feldblum Testimony, supra n. 21, pages 22-29.
---------------------------------------------------------------------------
iv. the ada amendments act of 2008, as passed by the house
In fall 2007, a number of major business associations opposed S.
1881 and H.R. 3195, bills that had been introduced to rectify the
situation caused by the U.S. Supreme Court's interpretation of the
ADA's definition of disability. These groups felt that the bills as
introduced went beyond the original intent of the ADA by including too
many people with impairments as people with disabilities. They were
particularly concerned about the number of employees with impairments
who might be eligible for reasonable accommodations by employers under
the proposed amendments to the ADA.\27\
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\27\ See, e.g., testimony of Camille A. Olson to the Senate Health,
Education, Labor, and Pensions Committee, Hearing on Restoring
Congressional Intent and Protections under the ADA, Nov. 15, 2007.&
---------------------------------------------------------------------------
For example, in testimony before this committee on November 15,
2007, Camille Olson, from the law firm of Seyfarth Shaw, articulated a
number of concerns that were being voiced by various business
associations at the time. These concerns fell into the following broad
categories:
The language of S. 1881 would cover any impairment, no
matter how minor or trivial, as a disability.\28\
---------------------------------------------------------------------------
\28\ See Olson Testimony, supra n. 27 at pages 1-2 (``There can be
no question that sponsors of S. 1881 have proposed changes to the ADA
with the intent of benefiting individuals with disabilities. S. 1881's
proposed changes, however would unquestionably expand ADA coverage to
encompass almost any physical or mental impairment--no matter how minor
or short-lived. In essence, S. 1881 changes the focus of the ADA from
whether an individual has a functional ``disability'' to whether the
individual has an ``impairment,'' without regard to whether the
impairment or ailment in any way limits the individual's daily life.'')
---------------------------------------------------------------------------
The fact that minor and trivial impairments would be
eligible for reasonable accommodations could cause considerable
difficulty for employers.\29\
---------------------------------------------------------------------------
\29\ Id. at 6. (``Moving the ADA's focus away from individuals with
disabilities to individuals with impairments, as S. 1881 would do, will
give virtually every employee the right to claim reasonable
accommodation for some impairment, no matter how minor, unless the
employer can prove that doing so would be an undue hardship.'')
---------------------------------------------------------------------------
Congress had deliberately and carefully decided, in 1990,
that an impairment should ``substantially limit'' a ``major life
activity'' in order to be a disability.\30\
---------------------------------------------------------------------------
\30\ Id. at 10-11 (``The ADA's inclusion of ``substantially limits
one or more of the major life activities of such individual'' was the
result of deliberate and careful consideration by Congress. In adopting
the substantial limitation on a major life activity requirement,
Congress (not the Federal judiciary) made clear that covered
disabilities do not include ``minor, trivial impairments, such as a
simple infected finger.'')(Citation omitted.)
---------------------------------------------------------------------------
S. 1881 would make radical shifts with regard to the
burden of proof on qualifications under the ADA.\31\
---------------------------------------------------------------------------
\31\ Id. at 24-25 (``Third, in a clear departure from the current
statutory scheme, S. 1881 shifts the burden of proof to the employer to
demonstrate that an individual alleging discrimination ``is not a
qualified individual with a disability.'' . . . The calculated
balancing of the rights and obligations between disabled employees and
employers is clear from the ADA's legislative history. . . . S. 1881's
attempted reversal of Congress's allocation of the burden of proof
contravenes the fundamental tenet of law disfavoring proof of a
negative proposition.'')(Citations omitted.)
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At the November 15, 2007 hearing, there was an exchange between
this witness, Camille Olson, and Senator Tom Harkin as to whether S.
1881 was the appropriate response to the U.S. Supreme Court cases and
both this witness and Olson indicated a willingness to continue talking
about how to best respond to such cases.\32\
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\32\ See http://help.senate.gov/Hearings/2007_11_15_b/
2007_11_15_b.html for video of hearing.
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Overtures for such a conversation were made in January 2008 and
official discussions between representatives of the disability
community and the business community began in February 2008. The
disability community was represented (in alphabetical order) by the
American Association of People with Disabilities; Bazelon Center for
Mental Health Law; Epilepsy Foundation; the National Council on
Independent Living; and National Disability Rights Network. The
business community was represented (in alphabetical order) by the HR
Policy Association; National Association of Manufacturers; Society for
Human Resource Management; and the U.S. Chamber of Commerce. Various
other groups joined from time to time. In May 2008, the disability and
business communities communicated to several Members of the House of
Representatives and the Senate some of the agreements they had reached
internally.
The ADA Amendments Act of 2008, passed by the House in June 2007 by
a vote of 402-17, reflected some of these agreements. This bill makes
the following changes to current law in order to respond to the adverse
U.S. Supreme Court decisions of 1999 and 2002:
The statutory language overturns the mitigating measures
analysis of Sutton and explicitly states that mitigating measures are
not to be taken into account in determining whether an individual has a
disability.
The findings in the bill disapprove of the Sutton trilogy
and disapprove of several statements in Toyota v. Williams.
The statutory language clarifies that an individual is not
excluded from coverage because of an ability to do many things, as long
as the individual is substantially limited in one major life activity.
The statutory language clarifies that the fact that an
otherwise substantially limiting impairment is in remission or episodic
does not remove the individual from coverage.
To respond to the directive in Williams that the
definition of disability was intended by Congress to be narrowly
construed, the statutory language indicates that the definition is to
be given a broad construction. (This construction, obviously, cannot go
beyond the terms of the Act itself.)
The ``regarded as'' prong focuses on how an individual is
treated, rather than on the difficult to prove perception of a covered
entity.
There are also several changes in the ADA Amendments Act that
respond to concerns raised by the business community:
The most major change in the ADA Amendments Act of 2008 is
that it re-
instates the current language of the ADA that requires an impairment to
``substantially limit'' a ``major life activity'' in order to be
considered a disability that requires a reasonable accommodation or
modification.
The term ``substantially limits'' is defined as
``materially restricts'' which is intended, on a severity spectrum, to
refer to something that is less than ``severely restricts,'' and less
than ``significantly restricts,'' but more serious than a moderate
impairment which is in the middle of the spectrum.
The statutory language explicitly provides that ordinary
eyeglasses and contact lenses are to be taken into account as
mitigating measures.
The statutory language makes clear that reasonable
accommodations need not be provided to an individual who is covered
solely under the ``regarded as'' prong of the definition of disability.
The statutory language clarifies that there are no changes
to the burdens of proof with regard to proving qualifications for a
job.
Although there is no general severity test required under
the ``regarded as'' prong, transitory and minor impairments are not
covered under that prong.
The committee has specifically inquired whether the obligations of
employers under the House-passed bill would be different than current
law. The only difference for employers from the ADA (as enacted in
1990, not as subsequently interpreted by the U.S. Supreme Court) is
that the statute now clearly establishes that reasonable accommodations
need not be provided to an individual who has a disability solely under
the ``regarded as'' prong of the definition.
This aspect of the language clarifies the current state of the law
on whether reasonable accommodations are available to those covered
under the ``regarded as'' prong of the definition of disability. Four
circuit courts of appeal (the First, Third, Tenth and Eleventh Circuit
Courts of Appeal) have held that plaintiffs who are not covered under
the first prong of the definition may nonetheless seek reasonable
accommodations under the ``regarded as'' prong.\33\
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\33\ The following circuit courts have held that the ADA requires
that reasonable accommodations be provided to individuals who are able
to establish coverage under the ADA only under the ``regarded as''
prong of the definition of disability: Kelly v. Metallics West, Inc.,
410 F.3d 670 (10th Cir. 2005) (plaintiff needed oxygen device to
breathe); D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir.
2005) (plaintiff had vertigo resulting in spinning and vomiting);
Williams v. Philadelphia Housing Auth. Police Dept, 380 F.3d 751 (3d
Cir. 2004) (plaintiff had major depressive disorder); and Katz v. City
Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996) (plaintiff had heart
attack). In addition, the following district courts have similarly held
that reasonable accommodations may be available under the third prong:
Lorinz v. Turner Const. Co., 2004 WL 1196699, * 8 n.7 (E.D.N.Y. May 25,
2004) (plaintiff had depressive disorder and anxiety); Miller v.
Heritage Prod., Inc., 2004 WL 1087370, * 10 (S.D. Ind. Apr. 21, 2004)
(plaintiff had back injury and could not lift more than 20 pounds, bend
or twist); Jacques v. DiMarzio, Inc., 200 F. Supp.2d 151 (E.D.N.Y.
2002) (plaintiff had bipolar disorder); and Jewell v. Reid's
Confectionary Co., 172 F. Supp.2d 212 (D. Me. 2001) (plaintiff had
heart attack).
---------------------------------------------------------------------------
It is perhaps no surprise that some courts--when faced with claims
that appear to have merit but in which the case law (in light of Sutton
and Williams) precludes coverage of the plaintiff under the first prong
of the definition of disability--have concluded that the plain language
of the ADA requires employers to provide reasonable accommodations to
individuals who fall under the third prong of the definition. It is
also probably not a surprise that other courts have concluded that
reasonable accommodations are not required under the third prong.\34\
---------------------------------------------------------------------------
\34\ There is a circuit split on this issue. The Ninth, Eight,
Sixth, and Fifth Circuits have held that reasonable accommodations need
not be provided to an employee who is merely regarded or perceived as
disabled. See Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231-33
(9th Cir. 2003); Weber v. Strippit, Inc., 186 F.3d 907, 916-17 (8th
Cir. 1999); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir.
1999); Newberry v. E. Texas State Univ., 161 F.3d 276, 280 (5th Cir.
1998).
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However, when one reviews the facts of the cases in which
reasonable accommodations have been found to be required under the
third prong, it seems clear that the plaintiffs in those cases should
have been covered under the first prong of the definition of
disability. Hopefully, that will be the case now under the ADA as
amended by the ADA Amendments Act of 2008. For example, three of the
impairments in those cases--heart attacks, bipolar disorder, and major
depressive disorder--should be covered as material restrictions on
major bodily functions--the first on the circulatory system and the
second two on brain functioning. The particular facts in the cases
regarding the severity of the other four impairments--a respiratory
impairment requiring use of an oxygen device, vertigo, back injury, and
depression and anxiety--could be examples of impairments that
materially restrict the major life activities of breathing; standing;
bending and twisting; and concentrating, sleeping and thinking
(respectively) when mitigating measures are not taken into account and
when episodic impairments are considered in their active state.
The committee has also inquired whether the standard for
determining whether an individual is ``disabled'' should be more
clearly defined than it is in the House-passed bill. Those of us
engaged in the discussions on this bill believe that there is
sufficient guidance for the courts to determine when an impairment
``materially restricts'' a major life activity. In particular, we
believe the combination of the findings in the bill, and the direction
for a broad construction of the definition of disability (within the
limits of the terms of the statute) should provide additional and
adequate guidance for the courts.
Thank you for your attention and I look forward to answering any
questions.
Senator Harkin. Thank you, Professor Feldblum. Carey
McClure, a citizen from Griffin, GA--I think most of us are
familiar with your case, and what happened to you at General
Motors, but if you could take a couple of minutes to sum it up
for us, Mr. McClure.
STATEMENT OF CAREY L. McCLURE, CITIZEN, GRIFFIN, GA
Mr. McClure. Thank you, sir. I am Carey McClure. I am a
retired electrician from Griffin, GA. I have been doing
electrical work for about 20 years. I worked for many companies
as an electrician. I love my job and I was very good at it.
When I was 15 I was diagnosed with facioscapulohumeral
muscular dystrophy. It affects some of the muscles and causes
constant pain. I can't lift my arms above my shoulders, but I
have found ways to live with my condition. I use step stools
and ladders to reach things. I use one arm to help the other
reach things. The point is, my muscular dystrophy does not stop
me from living my life or from being a good electrician. There
is virtually nothing I can't do.
I wanted to work for General Motors like my father and my
brother did. The company has good pay and benefits. When I was
finally offered a job there I had to take a company physical.
The company doctor said that because I could not lift my arms
above my head, I could not be an electrician. I had been
working as an electrician doing more complicated and demanding
work than what General Motors wanted me to do, but the job
offer was withdrawn. I knew I could do the job despite my
physical limitations so we went to court.
During the hearing of the case the lawyers, judges and
employers asked me many embarrassing and personal questions
about my non-work activities. Questions that had nothing to do
with my qualifications for the job. But the appeals court ruled
that because I could manage my daily life and because I had
compensated so well for my impairment, I was not disabled
enough to be covered under the ADA, even though the reason I
was not hired was my disability.
So I asked them if someone who suffered from undisputable
muscular dystrophy and was refused a job because of this is not
an individual with a disability under the ADA, then who is?
The Fifth Circuit passed the buck to the U.S. Supreme Court
for the interpretation of the ADA. They said that my problem
was with the U.S. Supreme Court, not them. Well, you could do
something about the U.S. Supreme Court today--the
interpretations of the ADA, by passing the ADA Amendment Act
this year for the sake of people with disabilities like me who
want to work but are discriminated against. I hope you will.
Thank you for listening and I will be happy to answer
questions.
[The prepared statement of Mr. McClure follows:]
Prepared Statement of Carey L. McClure
Mr. Chairman and members of the committee, good morning. My name is
Carey McClure, and I am an electrician from Griffin, GA. I'd like to
thank you for holding this roundtable today, and for giving me a chance
to tell my story.
I have been an electrician for over 20 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 15 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.
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, TX. 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, GA;
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 20 years, I've been an electrician. For over 20 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 stepstool 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 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 20 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 6
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 could 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 Fifth Circuit Court of Appeals told me that they were just
interpreting the ADA as the U.S. Supreme Court told them to, and that
my problem was with the U.S. Supreme Court--not them. They told me that
the Sutton case, and its companion 1999 cases, Kirkingburg and Murphy,
as well as the 2002 Toyota case, had set rules that allowed me to be
thrown out of court because I wasn't disabled enough.
Now if the Fifth Circuit was right that my problem is with the U.S.
Supreme Court's bad reading of your good law, then you are the ones who
can do something about those interpretations of the ADA. For the sake
of people with disabilities like me who want to work but are
discriminated against, I hope you will.
I am not a lawyer. But people who are lawyers have looked at the
proposed ADA Amendments Act and have explained to me that this proposal
would take care of every argument the 5th Circuit made in dealing with
my own case, based on those U.S. Supreme Court opinions.
Millions of Americans like me will thank you every day for the rest
of our lives if you can pass a law that fixes the coverage problem for
people with conditions like mine, a law like the ADA Amendments Act
which has the support of both the business community and disability
advocates.
And the sooner the better, because every day that goes by, more
people with disabilities are discriminated against and, like me, cannot
get justice in the courts.
Thank you for giving me the opportunity to speak before you today,
and for your help in getting a new ADA passed this year.
Senator Harkin. Thank you, very much, Mr. McClure, first of
all for being here and being brave enough to take them on and
to highlight what we just put up there. Muscular dystrophy used
to be listed as a disability under that ADA and the Rehab Act
of 1973, and now it no longer is. We will get to that.
Professor Bagenstos, Professor of Law at the Washington
University School of Law in St. Louis, MO.
Professor.
STATEMENT OF SAMUEL R. BAGENSTOS, PROFESSOR OF LAW, WASHINGTON
UNIVERSITY SCHOOL OF LAW, ST. LOUIS, MO
Mr. Bagenstos. Thank you, Mr. Chairman, and Senator Enzi. I
am here because I teach and write about disability
discrimination laws. I have been litigating cases under the ADA
since the mid-1990's and have been writing about it since I
started teaching about a decade ago. I support the ADA
Amendments Act and I am happy to answer any questions about any
parts of the bill in our discussion, but in this brief
statement I want to talk about two issues that staff suggested
that I might address.
The first relates to the bill's broad construction
provision. What I would like to say about that is, it is not at
all unusual in the law. It mirrors very similar provisions in
lots of other statutes all across the U.S. Code. The U.S.
Supreme Court has emphasized that such a provision doesn't
change the meaning of the law. It serves only as an aid for
resolving an ambiguity in the law but can't create an ambiguity
of its own. So, in this bill before this committee what it does
is nothing more than make clear that ambiguities in the
definition of disability are to be resolved in favor of
considering claims of discrimination on the merits, of
considering whether somebody was actually discriminated
against, and it is essential because the courts have
aggressively and without support in the statute rejected that
view which had been an the typical view for interpreting the
statute.
The second point I want to make is that the bill's
materiality standard for substantial limitation invokes a
concept that is familiar to judges. So there is no particular
need to elaborate it further in the bill. Indeed there is a
limit on to which it can be elaborated and that is what Justice
Scalia has made clear in various cases in the U.S. Supreme
Court. Elaborating the materiality standards because it is very
fact specific.
If the committee believes it is necessary to elaborate I
would suggest in my testimony one possible way of doing that,
and I would be happy to talk about that in the question period.
Thank you very much, and I look forward to your questions.
[The prepared statement of Mr. Bagenstos follows:]
Prepared Statement of Samuel R. Bagenstos
Mr. Chairman and members of the committee, I am pleased to testify
before you today. My name is Samuel Bagenstos. I am a Professor of Law
at the Washington University Law School in St. Louis, MO, where I teach
constitutional law, employment discrimination, civil rights litigation,
and disability law, among other things. For over a decade, I have been
litigating cases under and writing about the Americans with
Disabilities Act. I have served as counsel to the individual plaintiffs
in the U.S. Supreme Court in the two most recent cases in which the
Court addressed the constitutionality of the ADA: Tennessee v. Lane,
541 U.S. 509 (2004); and United States v. Georgia, 546 U.S. 151 (2006).
In both Lane and Georgia, the Court agreed with our position and upheld
the constitutionality of the ADA as applied to my clients' cases.
I have been invited to testify to discuss the ADA Amendments Act,
which passed the House last month and is now pending before the Senate.
As one who both studies and litigates disability rights cases, I
strongly support the bill. The ADAAA will overturn the mitigating-
measures holding of Sutton v. United Air Lines,\1\ which has been
applied to deprive many individuals with disabilities of the ADA's
protections. The bill will also overturn the restrictive interpretation
of ``substantially limits'' applied in Toyota Motor Mfg., Ky., Inc. v.
Williams,\2\ and it will decisively reject the Toyota Court's
unsupported dictate that the statute ``need[s] to be interpreted
strictly to create a demanding standard for qualifying as disabled.''
\3\ And it will make clear, contrary to the practice of many courts,
that the ``regarded as'' prong of the ADA's disability definition
occupies an important and independent position in the statutory scheme.
As you have heard at previous hearings, and will hear again today, far
too many ADA cases have been thrown out of court at the threshold
``disability'' stage, and far too many people with disabilities have
accordingly been unable to have their claims of discrimination heard on
the merits. This bill is essential to change that unjust result.
---------------------------------------------------------------------------
\1\ Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
\2\ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002).
\3\ Id. at 197.
---------------------------------------------------------------------------
I should emphasize that, just after Sutton was decided, I published
an article that endorsed the Court's mitigating-measures holding
(though not other aspects of the decision).\4\ I argued that protecting
individuals whose only ``disability'' was the need to use ordinary
corrective lenses was not consistent with the statutory language or
Congress's intent. Moreover, I contended, the Court's opinion, properly
construed, would still afford ADA coverage for individuals with
epilepsy, diabetes, and other conditions that Congress clearly
contemplated as being covered by the statute. But experience with the
Sutton holding has proved me wrong. Lower courts have employed that
holding to deny protection to people with muscular dystrophy, diabetes,
epilepsy, and many other conditions that would have seemed clearly to
fall within the heartland of the statute's coverage.\5\ And the U.S.
Supreme Court exacerbated the problem by declaring in Toyota that the
statute ``need[s] to be interpreted'' as incorporating ``a demanding
standard'' for coverage.\6\ These developments have convinced me that a
change to the statute is badly needed. The ADAAA is a reasonable
compromise that addresses the vast bulk of the problems created by the
restrictive judicial decisions. The bill deserves this committee's
support.
---------------------------------------------------------------------------
\4\ Samuel R. Bagenstos, Subordination, Stigma, and ``Disability,''
86 Va. L. Rev. 397 (2000).
\5\ See H.R. Rep. No. 110-730, Part 1, at 15-16 (2008).
\6\ Toyota, 534 U.S. at 197.
---------------------------------------------------------------------------
I have been asked to discuss two questions specifically: First, is
the bill's provision requiring that the definition of disability be
``construed broadly'' permissible or appropriate? Second, is the bill's
definition of ``substantially limits'' sufficiently clear? The answer
to both questions, I hope to show in this testimony, is ``yes.''
broad construction
As part of its amendments to the ADA's definition-of-disability
section, the ADAAA would add a set of new rules of construction. One of
these rules is set forth in the new subsection 5(A), which states: ``To
achieve the remedial purposes of this Act, the definition of
`disability' in paragraph (1) shall be construed broadly.'' I
understand that questions have been raised about the constitutionality
or propriety of this provision. But there is nothing at all
unconstitutional or improper about a broad-construction provision. Such
provisions appear in a variety of statutes sprinkled across the U.S.
Code. A few illustrative examples include the Religious Land Use and
Institutionalized Persons Act,\7\ the Indian Land Consolidation Act,\8\
the statute authorizing criminal appeals by the United States,\9\ and
the statute authorizing criminal forfeiture in narcotics cases.\10\ In
interpreting provisions like these, the U.S. Supreme Court has applied
them like any other statutory language, without expressing any doubt
about their validity.\11\ Importantly, the Court has emphasized that:
---------------------------------------------------------------------------
\7\ 42 U.S.C. Sec. 2000cc-3(g) (``This chapter shall be construed
in favor of a broad protection of religious exercise, to the maximum
extent permitted by the terms of this chapter and the Constitution.'').
\8\ 25 U.S.C. Sec. 2206(i)(7) ( ``This subsection shall not be
considered penal in nature, but shall be construed broadly in order to
effect the policy that no person shall be allowed to profit by his own
wrong, wherever committed.'' ).
\9\ 18 U.S.C. Sec. 3731 ( ``The provisions of this section shall be
liberally construed to effectuate its purposes.'' ).
\10\ 21 U.S.C. Sec. 853(o) ( ``The provisions of this section shall
be liberally construed to effectuate its remedial purposes.'' ).
\11\ See, e.g., Reves v. Ernst & Young, 507 U.S. 170, 183-184
(1993) (applying the ``liberal construction'' provision of the
Racketeer Influenced and Corrupt Organizations Act, Pub.L. 91-452,
Sec. 904(a), 84 Stat. 947, viz.: ``provisions of this title shall be
liberally construed to effectuate its remedial purposes''); Tafflin v.
Leavitt, 493 U.S. 455, 467 (1990) (same); Sedima, S.P.R.L. v. Imrex
Co., Inc., 473 U.S. 479, 491 n.10 (1985) ( `` [I]f Congress' liberal-
construction mandate is to be applied anywhere, it is in Sec. 1964,
where RICO's remedial purposes are most evident.'' ).
[A broad construction] clause obviously seeks to ensure that
Congress' intent is not frustrated by an overly narrow reading
of the statute, but it is not an invitation to apply [the
statute] to new purposes that Congress never intended. Nor does
the clause help us to determine what purposes Congress had in
mind. Those must be gleaned from the statute through the normal
means of interpretation.\12\
---------------------------------------------------------------------------
\12\ Reves, 507 U.S. at 183-184.
In short, a broad construction ``clause only serves as an aid for
resolving an ambiguity; it is not to be used to beget one.'' \13\
---------------------------------------------------------------------------
\13\ Id. at 184 (internal quotation marks omitted).
---------------------------------------------------------------------------
So understood, the ADAAA's broad-construction provision does
nothing more than declare that, in cases of ambiguity, plaintiffs are
entitled to have their claims of discrimination heard on the merits. It
thus simply re-states the background principle against which Congress
adopted the ADA in the first place--the ``familiar canon of
construction that remedial legislation should be construed broadly to
effectuate its purposes.'' \14\ In interpreting the ADA's definition of
disability, the courts have utterly disregarded that principle. Worse,
they have imposed on the statute a rule of narrow construction that
finds no support in the text and is patently inconsistent with the
intent of the Congress that enacted the ADA. In holding that the terms
``substantially limits'' and ``major life activities'' are ones that
``need to be interpreted strictly to create a demanding standard for
qualifying as disabled,'' \15\ the U.S. Supreme Court may have imposed
its own view of wise policy on the statute, but it did not heed the
view of the Congress that enacted the law. The ADAAA's broad-
construction provision may prove necessary to ensure that courts heed
Congress's policy judgment and refrain from imposing their own
restrictive interpretations on the disability definition. Absent the
broad-construction provision, many judges will continue to feel free to
lean toward ``strict'' and ``demanding'' construction of the disability
definition in cases of ambiguity. If Congress intends for ambiguities
to be resolved in favor of claims being heard on the merits, the
ADAAA's broad-construction provision is an apt means of ensuring that
courts will heed that intent.
---------------------------------------------------------------------------
\14\ Sutton v. United Air Lines, Inc., 527 U.S. 471, 504 (1999)
(Stevens, J., dissenting) (quoting Tcherepnin v. Knight, 389 U.S. 332,
336 (1967)).
\15\ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197
(2002).
---------------------------------------------------------------------------
the ``substantially limits'' definition
``Substantially limits'' is a crucial term in the statute's
definition of disability,\16\ but the ADA does not define it.
Unfortunately, the word ``substantial'' is notoriously protean. The
U.S. Supreme Court itself has pointed out that ``the word `substantial'
can have two quite different--indeed, almost contrary--connotations.''
\17\ (To use the Court's example, the term has a very different meaning
in the statement, ``He won the election by a substantial majority,''
than it does in the statement, ``What he said was substantially true.''
\18\ ) The courts have exploited this ambiguity to impose on the ADA
the narrowest possible interpretation of the term. The ADAAA solves
this problem by adding, as section 3(2) of the ADA, a definition of
``substantially limits'' that incorporates the familiar materiality
test: ``The term `substantially limits' means materially restricts.''
---------------------------------------------------------------------------
\16\ See 42 U.S.C. Sec. 12102(2)(A).
\17\ Pierce v. Underwood, 487 U.S. 552, 564 (1988).
\18\ Id.
---------------------------------------------------------------------------
Application of a materiality standard ``does not lend itself to
mechanical resolution'' because fact settings differ.\19\ But, as
Justice Scalia (writing for the Court) has explained, ``judges are
accustomed to using [such a standard], and can consult a large body of
case precedent'' in a number of areas for guidance.\20\ Because
materiality is a concept familiar to judges, there is no particular
need to elaborate that concept further in the bill. And indeed, the
restrictive effects of impairments often differ from person to person.
There is a limit to the degree to which the materiality concept can be
further elaborated if it is to take those factual differences into
account.
---------------------------------------------------------------------------
\19\ Kungys v. United States, 485 U.S. 759, 771 (1988).
\20\ Id. at 772.
---------------------------------------------------------------------------
That said, if the committee believes that additional elaboration in
the statutory text is necessary, one possibility readily suggests
itself. The House Judiciary Committee's report on the ADAAA suggests
that ``materially restricts'' is measured against the kinds of
restrictions that most people, or the average person, face.\21\ The
EEOC's current regulations--although they are not framed as
implementing a materiality standard--incorporate the same comparative
insight. They define ``substantially limits'' as `` [s]ignificantly
restricted as to the condition, manner, or duration under which an
individual can perform a particular major life activity as compared to
the condition, manner, or duration under which the average person in
the general population can perform that same major life activity.''
\22\ The committee, accordingly, could simply adapt the current EEOC
``substantially limits'' regulation, deleting the ``significantly
restricted'' language, and incorporate it in the ADAAA's text after the
``materially restricts'' sentence. The result might look like the
following: `` `Materially restricts' refers to a restriction on the
condition, manner, or duration of an individual's ability to engage in
a major life activity as compared to that of the average person [or
`most people' ].'' Although I do not believe an addition like this is
necessary, it would not, so far as I have been able to determine,
introduce problems in application. If the committee believes
elaboration of the materiality standard is necessary, the modified EEOC
language is likely to be the best approach.
---------------------------------------------------------------------------
\21\ See H.R. Rep. No. 101-730, Part 2, at 16 (2008) (defining
``material'' by reference to the ``middle of the spectrum''
experience).
\22\ 29 CFR Sec. 1630.2(j)(1)(ii).
---------------------------------------------------------------------------
objections to the bill
I have seen two basic objections asserted against the ADAAA. Both
are misplaced.
First, a memorandum circulated by the Heritage Foundation contends
that the ADAAA will entitle people with minor or bogus medical
conditions to receive accommodations from employers, thereby burdening
business and reducing the employment prospects of people with
disabilities.\23\ That argument misunderstands the bill. It is doubtful
that the sorts of minor impairments the memorandum discusses would
satisfy the ``materially restricts'' requirement; if not, those
impairments could not be covered as actually substantially limiting a
major life activity. (If so, and they actually require accommodation to
enable individuals with them to work, it would be hard to call them
minor or bogus.) And the bill makes clear that reasonable accommodation
is not required for individuals who are covered only under the
``regarded as'' prong of the disability definition.\24\ The ADAAA
requires employers to provide accommodation only for those conditions
that materially restrict major life activities. And it makes no change
to the ADA's current accommodation language, which makes clear that an
employer need provide accommodations only when doing so is reasonable
and can be accomplished without undue hardship.\25\
---------------------------------------------------------------------------
\23\ See Andrew M. Grossman & James Sherk, The ADA Restoration Act:
Defining Disability Down (July 2, 2008).
\24\ See H.R. 3195, Sec. 6 (new 42 U.S.C. Sec. 12201(g)).
\25\ See 42 U.S.C. Sec. 12112(b)(5).
---------------------------------------------------------------------------
Second, some in the higher education community have expressed
concern that expansion of the disability definition will compromise
academic standards.\26\ But nothing in the ADAAA would change the
portions of the ADA that require only ``reasonable'' modifications that
do not ``fundamentally alter'' a university's program.\27\ Courts have
accorded educators great deference in determining whether a proposed
accommodation would be consistent with academic standards.\28\ Nothing
in the ADAAA would change that.
---------------------------------------------------------------------------
\26\ See Sara Lipka, House Committee Approves Bill to Clarify Who
Qualifies Under Disability Law, Chronicle Of Higher Ed.: Today's News
(June 19, 2008), available at http://chronicle.com/daily/2008/06/
3451n.htm.
\27\ See 42 U.S.C. 12182(b)(2)(A)(ii); 28 CFR Sec. 35.130(b)(7).
\28\ See, e.g., Zukle v. Regents of University of California, 166
F.3d 1041, 1047-1048 (9th Cir. 1999) (collecting cases).
---------------------------------------------------------------------------
The ADAAA is an essential bill to overturn the restrictive
decisions of the U.S. Supreme Court and lower courts. It deserves the
committee's support. I look forward to your questions.
Senator Harkin. Thank you, Professor Bagenstos. Now we turn
to Jo Anne Simon, Esq. from the Law Office of Jo Anne Simon in
Brooklyn, NY. Ms. Simon has been in the field of working with
the disability community for a long, long time.
Ms. Simon, welcome.
STATEMENT OF JO ANNE SIMON, ESQ., THE LAW OFFICE OF JO ANNE
SIMON, BROOKLYN, NY
Ms. Simon. Thank you, Mr. Chairman and Senator Enzi. Thank
you very much for holding this hearing.
I would like to address a few comments about to the impact
of the ADA Amendments Act with regard to education and high
stakes standardized testing. The education community, both K-12
and higher education, have raised some concerns with regard to
the number of people who would be requesting accommodations
under the ADA Amendments Act, essentially stating that this
would enormously expand the people who would be requesting
services under the law.
I believe that to be entirely false for two reasons. First,
both the K-12 and higher education community are, for the most
part, covering these students. This is not going to swell their
ranks.
And second, I think it's very important that we keep
separate the notion of whether one is protected by the act from
whether or not one is entitled to a service under the act. The
act, in fact, requires reasonable accommodations for those
people with disabilities who may need them and they may need
them in certain situations and not in others. So the very fact
that one needs an accommodation should not be a litmus test for
whether or not one has a disability. That is the second step of
an analysis and that step is not changed at all by this
amendment.
The standardized testing industry has raised several
arguments with regard to, again, the increase in the number of
requests for accommodations. I believe that also will not
change under this act. The fact is that most people who have a
disability are already requesting accommodations when they are
taking one of these tests.
What might change is the fact that certain people would be
extended accommodations on these tests that are not currently
because of the bogus and very, very narrow interpretation of
the U.S. Supreme Court case law. These requests are for the
most part denied not because the request is not reasonable, but
because the entity has substituted its judgment for that of the
physician and said, ``no, this person does not have a
disability'' and applied the Sutton and Toyota standards.
To the extent that fears have been raised about the
validity of the tests after accommodations have been provided,
this is not an issue that is really addressed by this
legislation. There is already existing a defense for any
organization that if a requested accommodation would
fundamentally alter the nature of the tests, then it need not
be provided. However, these entities are providing
accommodations for a number of people with disabilities and
there is a reason for that.
One is a blue ribbon panel commissioned by the College
Board who are the people who make the SAT has already examined
this issue and found that extended time, which is, the most
commonly requested accommodation does not compromise either the
validity or the score comparability. Therefore, I think the
issues that are raised represent fears, represent concerns, but
they do not represent facts. Thank you. I look forward to your
questions.
[The prepared statement of Ms. Simon follows:]
Prepared Statement of Jo Anne Simon, Esq.
Mr. Chairman and members of the committee, I am pleased to submit
this testimony for the record. My name is Jo Anne Simon. For the past
12 years I have maintained a law practice concentrating on disability
rights in education, high stakes standardized testing and employment
discrimination matters. I have been an adjunct Assistant Professor at
Fordham University School of Law for the past 10 years and previously
served as Staff Attorney for Hofstra University School of Law's
Disabilities Law Clinic for 4 years. I have served as counsel on a
number of disability rights cases, including Bartlett v. NYS Board of
Law Examiners.\1\
---------------------------------------------------------------------------
\1\ Bartlett v. New York State Board of Law Examiners, 970 F. Supp.
1094 S.D.N.Y. 1997) (Bartlett I); aff 'd 2 F. Supp. 2d 388 (S.D.N.Y.
1997) (Bartlett II); aff 'd in part, rev'd & remanded in part, 156 F.
3d 321 (2d Cir. 1998)(Bartlett III); vacated and remanded, 119 S.Ct.
2388 (1999)(Bartlett IV); aff 'd in part & remanded, 226 F. 3d 69 (2d
Cir. 2000)(Bartlett V); 2001 WL 930792 (S.D.N.Y. Aug. 15, 2001)
(Bartlett VI). See also, Root v. Georgia Board of Veterinary Medicine,
114 F.Supp.2d 1324 (N.D. Ga. 2000) rev'd on other grounds, No. 00-14751
(11th Cir. 2001).
---------------------------------------------------------------------------
I have been asked specifically to address the impact of the ADA
Amendments Act, as passed by the House, on schools and universities.
Like Professor Bagenstos, I both study and litigate disability
rights cases. I strongly support this bill. The ADAAA will do no more
than protect those Congress originally intended to protect. It would
overturn the mitigating measures holding of Sutton v. United Airlines
which has been applied in such a way as to deprive large numbers of
individuals with disabilities of the law's protections. These are
people that Congress meant to protect when it enacted the ADA. The
ADAAA will also overturn the restrictive interpretation of
``substantially limits'' as applied in Toyota and decisively reject
that Court's requirement that meeting the threshold for the law's
protections is a strict and demanding standard. No other civil rights
law so stringently and stingily scrutinizes those whom it seeks to
protect.
The threshold issue of who is covered by the ADA has formed the
bulk of the case law as covered entities have sought to reject coverage
based on narrow interpretations by the U.S. Supreme Court. While the
Court has held that the determination of whether a person is protected
by the ADA is to be made on a case-by-case basis,\2\ the Court's
``demanding standard'' \3\ is harshly inconsistent with the original
intent of the Congress which enacted the ADA, and has given rise to
cookie-cutter like formulations which sacrifice substance to form.
---------------------------------------------------------------------------
\2\ Sutton v. United Airlines, 527 U.S. at 482 (1999). ``. . .
whether a person has a disability under the ADA is an individualized
inquiry'').
\3\ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197
(2002).
---------------------------------------------------------------------------
impact of the adaaa on k-12 education
Under the ADAAA, similar to the current language of the ADA and
that of section 504, an impairment must ``substantially limit'' a major
life activity. An impairment meets this test if it ``materially
restricts'' a major life activity. Major life activities include such
things as learning, reading, thinking, and concentrating, as well as
the operation of various bodily functions.
The ADAAA directs courts not to take into account mitigating
measures when determining if impairments substantially limit a major
life activity. This will help children with impairments, such as
diabetes and epilepsy, who manage their impairments with medication.
Similarly, it will help children with learning disabilities who manage
to succeed academically by working round-the-clock to complete
assignments as a means of overcoming the effects of their impairment on
learning. In addition, a key purpose provision of the ADAAA overturns
the ``demanding standard'' for interpreting ``substantially limits''
that had been articulated by the U.S. Supreme Court in the Toyota case.
The ADAAA will ensure that students with disabilities receive
appropriate protection under the ADA and section 504. While few Federal
court decisions have held that elementary or secondary school children
do not have disabilities under these laws,\4\ you heard from Sue Gamm's
testimony that school districts and State educational agencies
routinely refuse to extend these laws' protections to children who have
managed to achieve high or even passing grades despite serious
impairments. Ms. Gamm provided the example of a hearing officer's
decision that a 10th grader who worked exceptionally hard to earn As
and Bs was not substantially limited in learning even though she had
difficulty organizing ideas and breaking down complex written material,
took a long time to break down material, had difficulty completing
assignments on time and problems with executive functioning, and
occasionally failed tests.\5\
---------------------------------------------------------------------------
\4\ Children have lost only a small number of these cases on the
ground that they did not have disabilities under the ADA or section
504. See, e.g., Costello v. Mitchell Public School District 79, 266
F.3d 916 (8th Cir. 2001) (epilepsy, ADD, unspecified learning
disabilities, depression and suicidal thoughts); Kropp v. Maine School
Administrative Union #44, 2007 WL 551516 (D. Me. Feb. 16, 2007)
(``severe persistent'' asthma requiring high-dose inhaled
corticosteroids, allergies requiring shots, and gastroesophageal
reflux); Garcia v. Northside Independent School District, 2007 WL 26803
(W.D. Tex. Jan. 3, 2007) (severe asthma that caused child to collapse
and die during running exercises at school); Smith ex rel C.R.S. v.
Tangipahoa Parish School Bd., 2006 WL 3395938 (E.D. La. Nov. 22, 2006)
(asthma and allergies requiring daily medication and use of EpiPen);
Marshall v. Sisters of Holy Family of Nazareth, 399 F. Supp. 2d 597
(E.D. Pa. 2005) (ADHD); Block v. Rockford Public School Dist., 2002 WL
31856719 (N.D. Ill. Dec. 20, 2002) (asthma and allergies requiring use
of inhaler).
\5\ Indeed, the Department of Education's Office of Civil Rights
has issued guidance making clear that mitigating measures must be
considered in education claims brought under the ADA and section 504.
Sutton Investigative Guidance: Consideration of ``Mitigating Measures''
in OCR Disability Cases (Sept. 29, 2000).
---------------------------------------------------------------------------
This is precisely the problem that the ADAAA is intended to
address. Students like that 10th grader should not be denied the
protections of the ADA simply because they have worked hard to overcome
the effects of a disability.
Moreover, the notion that a student cannot have a reading or
learning disability if he or she manages to attain high or passing
grades is fundamentally wrong. It reflects an outmoded and inaccurate
understanding of individuals with disabilities as individuals who are
completely incapable of performing well.
As the Department of Justice explains in its ADA regulatory
guidance, a person has a disability if he or she is substantially
limited in the condition, manner, or duration under which he or she
performs a major life activity as compared to the condition, manner, or
duration under which most people perform the activity. This is the
correct way to apply the definition of disability--a student who has an
impairment that substantially limits the conditions under which she
learns, or the manner in which she learns, has a disability even if she
manages to obtain average grades. The ADA's goal is not equal test
scores, but equal opportunity.
Ms. Gamm testified that schools are accommodating many students
with disabilities informally, but should not be subjected to the
planning and evaluation requirements of section 504. Congress did not
intend that students with disabilities who need accommodations should
be left without legal rights and be dependent solely on the good will
of schools to provide the help they need in order to learn. In any
event, section 504 imposes minimal planning and evaluation requirements
that should effectively be met by any school that is adequately meeting
the needs of a child with a disability.\6\
---------------------------------------------------------------------------
\6\ 34 CFR Sec. Sec. 104.33, 104.35.
---------------------------------------------------------------------------
School districts that have been complying with the ADA and section
504 have nothing to fear from the ADAAA. Indeed, they should welcome
the clarity that the amendments bring.
Most students, of course, receive their accommodations (related and
supplemental services) under the Individuals with Disabilities
Education Act (IDEA) and will continue to be so served.\7\ Some
students, however, receive their accommodations solely under section
504 and the ADA. These same students will continue to receive such
accommodations. For those children who have been inappropriately denied
the protections of the law, the new bill will help clarify the coverage
they should have been receiving.
---------------------------------------------------------------------------
\7\ Twelve percent of public school students receive services under
the IDEA, compared with approximately 1.2 percent under section 504
only. See Rachel A. Holler & Perry A. Zirkel, Section 504 and Public
Schools: A National Survey Concerning ``Section 504-Only'' Students,
National Association Of Secondary School Principles Bulletin, March
2008, at 24, 30.
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Concerns that the ADAAA will compel schools to provide services to
students who don't really need them are misplaced. Whether a student
has a disability and what, if any, services he needs are two distinct
issues. Take the hypothetical child with Attention Deficit
Hyperactivity Disorder whose medication fully corrects the symptoms of
his disorder. That is actually unlikely to be the case since medication
does not improve deficits in working memory, processing speed, lexical
access or executive functioning.\8\ However, even if medication had a
completely corrective effect, that child would still be protected from
discrimination based on his disability. Protection from discrimination,
however, only requires the provision of services where there is a
demonstrated need for those services. The ADA does not require needless
service provision. The greater danger, of course, is that a child
entitled to protection and perhaps in need of services, will not get
them, and will not have the opportunity to learn what he could and
should be learning.
---------------------------------------------------------------------------
\8\ Swanson, H.L. & Jerman, O. (2006). Math disabilities: A
selective meta-analysis of the Literature. Review of Educational
Research, 76, 249-274.
---------------------------------------------------------------------------
impact of the adaaa on postsecondary education
While the number of students with disabilities on American campuses
is growing, today only about 6 to 8 percent of college students
identify themselves as having a disability.\9\ Unlike K-12 schools,
postsecondary institutions bear no responsibility for identifying such
students and we rely on students' self-identification in order to
ensure that they receive necessary services. It is extremely unlikely
that more college students will request help for a disability due to a
change in the legal definition of disability under the ADA. Most
students are not aware of the nuances of the law. Rather, they ask for
help because they were identified with a disability prior to arriving
at the postsecondary institution, or because they are diagnosed with a
disability later in life. It is their experience and diagnosis of a
disability that triggers the request for help--not a wording change in
the law.
---------------------------------------------------------------------------
\9\ According to the Association on Higher Education And Disability
(AHEAD), the average disability services office has a mean of 7 staff
members, each of whom serves an average of 100 students (100-1 ratio).
Harbour, Wendy S. 2008 Biennial AHEAD Survey of Disability Services and
Resource Professionals in Higher Education, 2008. AHEAD: Huntersville,
NC. Other student services programs are generally staffed at higher
ratios. For example, many university housing programs are staffed at a
ratio of 10-1.
---------------------------------------------------------------------------
Indeed, the vast majority of postsecondary institutions are doing
an admirable job of providing welcoming and compliant environments for
students with disabilities. While the ADAAA would require changes by
those institutions that are applying an unduly restrictive definition
of disability in reliance on U.S. Supreme Court cases, those changes
are appropriate. Moreover, such institutions are the exception, not the
norm.
The ADAAA will prevent the inappropriate loss of protection for
students who use various measures to compensate for the limitations
caused by their disabilities. It provides that compensatory mechanisms
that an individual has used to circumvent some of his or her
limitations (for example, listening to books on CD to compensate for
limitations caused by dyslexia) cannot be used as evidence that the
students do not experience limitations in the first place. Some higher
education and standardized testing entities have determined whether a
student is ``substantially limited'' in learning by comparing an
individual's scores with those of the statistical average standardized
achievement test scores (in other words, below 16th percentile, or
virtual failure) or by comparing an individual's real-life outcomes
with those of the average person (for example, determining that a
student is not disabled simply because he has a graduate degree and the
average person doesn't). As a result, students with serious
disabilities who have managed to achieve higher than average test
scores or outcomes by taking steps to mitigate the effects of their
disabilities subsequently lose protection under the ADA simply for
having taken those steps. The fact that an individual has managed to
compensate for his or her impairment, through whatever means, should
not be used to punish the individual. The touchstone for accommodations
in the testing arena should be that set forth in Department of Justice
regulations: whether an accommodation is needed in order to ensure that
the examination results ``accurately reflect the individual's aptitude
or achievement level.'' \10\
---------------------------------------------------------------------------
\10\ 28 CFR Sec. 36.309.
---------------------------------------------------------------------------
Moreover, as is true now, under the ADAAA, postsecondary students
with disabilities will still need to demonstrate that they are
qualified and meet the essential eligibility criteria for an
educational program or course of study.\11\ A student who cannot meet
essential eligibility criteria will not prevail on a claim brought
under the ADA. Such a claim should be analyzed based on the merits and
not on an inappropriately narrow definition of disability.
---------------------------------------------------------------------------
\11\ 42 U.S.C Sec. 12131(2).
---------------------------------------------------------------------------
Considering whether an individual has a disability is distinct from
determining what accommodations might be reasonable in a given
circumstance. Under current law, colleges and universities are not
required to make modifications or offer accommodations that
fundamentally alter programs or services or compromise academic
standards.\12\ The ADAAA does not change this. Colleges and
universities will have the same ability to maintain academic standards
that they do under current law.
---------------------------------------------------------------------------
\12\ 42 U.S.C Sec. 12182(b)(2).
---------------------------------------------------------------------------
Concerns that the numbers of students bringing legal actions will
increase are unjustified. Similar concerns were raised in 1977 before
section 504 regulations were promulgated, and again in 1990 when the
ADA was enacted. Nevertheless, after over 30 years of protections,
roughly 6 to 8 percent of the postsecondary population reports a
disability and costs are minimal in comparison to overall institutional
budgets. There is no evidence to support a concern about academic
standards; rather it seems clear that students with disabilities who
graduate from our colleges and universities are fine examples of the
power of American education. The law does not require institutions to
fundamentally alter the nature of their services or programs. Moreover,
considerable deference has historically been given to educational
institutions' academic judgments. This deference helps institutions
balance the competing equities while maintaining program standards.
Although discrimination may not masquerade as deference to academic
judgment, the courts have struck a balance well understood by all.\13\
---------------------------------------------------------------------------
\13\ Guckenberger v. Boston University, 8 F. Supp. 2d 82 (D. Mass.
1998), Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st
Cir. 1992), Ewing v. Michigan, 474 U.S. 214 (1985).
---------------------------------------------------------------------------
standardized testing
The standardized testing industry has aggressively and rigidly
applied Sutton's and Toyota's narrow rulings. Testing entities have
applied Sutton and Toyota as if they had replaced all known diagnostic
criteria; their approaches have elevated form over substance and
ignored scientific practice.\14\ Some courts have substituted the
covered entity's judgment that an applicant does not have a disability
for the individual's physician's judgment rather than get to the merits
of the applicant's request.
---------------------------------------------------------------------------
\14\ See Bartlett VI at 8. See also, Barkley, Russell A. Ph.D.;
Biederman, Joseph M.D., Toward a Broader Definition of the Age-of-Onset
Criterion for Attention-Deficit Hyperactivity Disorder. Journal of the
American Academy of Child & Adolescent Psychiatry, September 1997, PP
1204-1210.
---------------------------------------------------------------------------
a word about public perception
Unfortunately, incorrect public perceptions have driven the courts'
analyses of many ADA claims, and have often replaced objective
judgment, to the detriment of individuals with disabilities. This has
particularly been true of standardized testing at all levels of
education, and markedly at the college admissions level.
A popular myth is that students without disabilities seek
accommodations on the SAT and other tests in order to achieve a
competitive edge on the test. Underlying this perception is a belief
that with extra time, everyone would perform significantly better,\15\
and that students from families of means will therefore unfairly seek
this type of advantage.
---------------------------------------------------------------------------
\15\ But see Bartlett VI at 42 ( ``this assumption is belied by
research showing that extra time does not have a significant impact on
the performance of individuals who do not have learning disabilities.''
)
---------------------------------------------------------------------------
This perception has been shown to be wrong. A class action suit
filed in 2002 alleged that ETS's practice of ``flagging'' the scores of
students who had taken the exam with disability accommodations violated
the law. As part of the settlement, the College Board agreed to create
a Blue Ribbon Panel of experts to review whether scores for SATs taken
under standard administration could be validly compared with those
taken by students with disabilities under non-standard conditions. If
they could be validly compared, then there was no need to ``flag'' the
exams in order to maintain the integrity of the exams.
The panel unanimously agreed that the practice of flagging was not
needed. Based on a thorough review of all the scientific evidence, the
Blue Ribbon Panel concluded that when students with learning
disabilities took exams under standard conditions, the scores they
received were not valid reflections of their actual knowledge.
Conversely, when such students received appropriate accommodations,
their scores were comparable to those of students without learning
disabilities who had not received accommodations.\16\ Thus, there was
no advantage being given to students with disabilities by virtue of the
accommodations.\17\
---------------------------------------------------------------------------
\16\ Gregg, N., Mather, N., Sawpit, S., and Sire, S. (2002) The
Flagging Test Scores of Individuals with Disabilities Who Are Granted
the Accommodation of Extended Time: A Report of the Majority Opinion of
the Blue Ribbon Panel on Flagging, at 6.
\17\ In fact, while over prediction is often cited as a concern in
connection with extended time accommodations, the SAT (the only test
for which such data is available) over predicts slightly more for
African-American students than students with disabilities. To the
extent this represents a problem, it is with the test or the data, not
students with disabilities. Id. at 7, 8.
---------------------------------------------------------------------------
Based on the report from the Blue Ribbon Panel, the College Board
ceased flagging in 2004.
Subsequent studies have confirmed the conclusions of the Blue
Ribbon panel.\18\ Repeatedly, studies have shown that students without
disabilities do not perform significantly better with extended time;
students perform significantly better with extended time only when they
need the accommodations because of a learning disability.
---------------------------------------------------------------------------
\18\ See, e.g., Cohen, A., Gregg, N., and Den, M. (2005) The Role
of Extended Time and Item Content on High Stakes Mathematics Test,
Learning Disabilities Research & Practice, 20, 225-233 (finding that
extended time does not improve scores unless the test-taker has a
disability and sufficient mastery of content). A review of such studies
by Ofiesh, et al., found that the results of all studies uniformly
indicated that under time constraints, students with learning
disabilities scored significantly lower than their peers. When provided
with extra time, students with learning disabilities had no significant
score differences from those of their peers who received no extra time.
Journal of Psychoeducational Assessment, Vol. 23, No. 1, 35-53 (2005);
Journal of Postsecondary Education and Disability, Vol. 14, No. 1
(2000). See also, Mandinach, Bridgeman, Cahalan-Laitusis, and Trapani
(2005) The Impact of Extended Time on SAT Performance. Research Report
2005-8, New York: The College Board. http://
professionals.collegeboard.com/data-reports-research/cb/impact-
extended-time-sat; and Lindstrom and Gregg (2007) Journal of Learning
Disabilities (in review)(large scale meta-analysis found that extended
time does not change the construct validity of these tests.).
---------------------------------------------------------------------------
Accommodations do not improve results; they facilitate the
demonstration of knowledge by students who are disadvantaged by the
test's mechanics. Aren't we supposed to be testing what students have
learned? Why are we suspicious when they can show it? In the Bartlett
case, after 21 days of trial, two trips to the Second Circuit and one
to the U.S. Supreme Court, on remand, the district court found that:
The Board [of Law Examiners' ] preoccupation with test scores
and its distrust of clinical judgments, however, seems to be
driven, at least in part, by misperceptions and stereotypes
about learning disabilities. . . . [t]he Board appears to view
applicants who claim to be learning disabled with suspicion.
Bartlett I, 970 F.Supp. at 1136. Of particular concern . . .
were alleged comments [that] . . . ``anyone who has the money
can pay for a report [concerning a learning disability].'' Id.
This same attitude was evidenced at the remand trial when
defendants and their experts implied on numerous occasions that
plaintiff might be ``faking'' her reading problems or
contriving her errors.
Bartlett VI, at 42.
In closing, I highlight the U.S. Supreme Court's decision in PGA
Tour, Inc. v. Martin.\19\ In PGA Tour, the Court held that the use of a
cart by a professional golfer with a physical disability did not
fundamentally alter the game of golf even though the PGA Tour's
ordinary requirement was that golfers had to walk the course. The U.S.
Supreme Court stated:
---------------------------------------------------------------------------
\19\ PGA Tour, Inc. v. Casey Martin, 532 U.S. 661 (2001).
The purpose of the walking rule is therefore not compromised
in the slightest by allowing Martin to use a cart. A
modification that provides an exception to a peripheral
tournament rule without impairing its purpose cannot be said to
``fundamentally alter'' the tournament. What it can be said to
do, on the other hand, is to allow Martin the chance to qualify
for and compete in the athletic events petitioner offers to
those members of the public who have the skill and desire to
enter. That is exactly what the ADA requires.\20\
---------------------------------------------------------------------------
\20\ Id. at 690 (2001).
That is all the ADAAA will do--provide access to the competition
that is the stuff of American life: school, work and play. The ADAAA
will prevent covered entities from putting individuals with
disabilities in a position where everything they have done to better
their circumstances will be used against them in a court of law. I
---------------------------------------------------------------------------
strongly urge the committee's support of this bill.
Senator Harkin. Thank you very much, Ms. Simon. Now we turn
to Michael Eastman, Employment Policy Director of the U.S.
Chamber of Commerce.
Mr. Eastman, welcome.
STATEMENT OF MICHAEL EASTMAN, EMPLOYMENT POLICY DIRECTOR, U.S.
CHAMBER OF COMMERCE, WASHINGTON, DC
Mr. Eastman. Thank you, Mr. Chairman and members of the
committee. I am pleased to be here before you today to talk
about the ADA and the Chamber's support of the ADA Amendments
Act. About a year ago the ADA Restoration Act was introduced
and the Chamber sent a letter strongly critical of that act to
members of the Senate.
What I would like to do in this opening time is talk to you
about how we got from there to where we are today. We
recognized that the proponents of the Restoration Act, the
folks in the disability community had articulated a very
legitimate need for legislative solution, and while reasonable
people can disagree about the outcome of any one court
decision, when taken as a whole aggregating all the Federal
court decisions under the ADA, it is incontrovertible that
courts have interpreted the ADA too narrowly and a legislative
fix is needed.
So we sat down with the disability community as well as
others in the business community and worked through to see if
we could find common ground in this area--Is there an approach
that we can live with and the disability community can live
with?--over several months, in more meetings and hours than I
care to admit.
When it became clear that we might be able to find a way
through this, we engaged in an extensive vetting process. For
the chamber that meant we engaged trusted practitioners, our
task force of members interested in ADA issues, our labor
policy committee and its subcommittee on Equal Employment
Opportunity. Other members of the business community had their
own vetting processes. And then we entered into larger
processes with other members of the business community, trade
associations in an attempt to hear from as many companies as
possible about what the real world impact of this approach
might be.
At the end of the day I am pleased that we can support the
approach the House took in the ADA Amendments Act and I hope
that as things go through the Senate process we will be able to
support the approach the Senate takes as well.
With that, I will conclude and we can save the substantive
discussion for later.
Senator Harkin. Mr. Eastman, I might just add that this
reminds me of the previous ADA of 1988, when Senator Weicker
and I introduced the first one. The U.S. Chamber was
unalterably opposed, but over a period of 2 years, working
together as you have done now, we were able to work out all our
compromises and the initial ADA had the full support of the
U.S. Chamber of Commerce. I remember that very well. It was a
great working relationship and I appreciate your being involved
in all these discussions this year and your support of this
bill.
Mr. Eastman. Thank you.
Senator Harkin. Sue Gamm, Primary Consultant, Public
Consulting Group from Chicago, IL.
Ms. Gamm, welcome.
STATEMENT OF SUE GAMM, PRIMARY CONSULTANT, PUBLIC CONSULTING
GROUP, CHICAGO, IL
Ms. Gamm. Thank you very much. I really appreciate the
opportunity to be here to speak with the esteemed Senators as
well as my colleagues around the table.
Just to give you a context for my statement, I have spent
the past 30 years working with the Office for Civil Rights,
with the U.S. Department of Education, as well as heading up
special ed services with the Chicago Public Schools. The last 3
years I have been consulting around a lot of the country and
training around issues involving kids with disabilities in
elementary and secondary education. So, that's my focus for my
comments.
First, let me say that we understand and support efforts
being taken to address issues that have arisen primarily in the
area of employment. We believe, though, and this is based on my
discussions with colleagues over the last period of time around
the country who are obligated to comply and actually implement
whatever provisions that are established and there is a belief
that while this is a great effort that there really are some
unintended consequences that haven't been fully explored around
impact with elementary and secondary education. And I would
just disagree with my esteemed colleague, Ms. Simon.
We do believe that a change or the discussion around these
different provisions would have a profound impact or could have
a profound impact. I don't have a crystal ball but I'm basing
it on what we believe or what we know at this time.
Unlike the employment arena, there are proactive specific
procedural requirements that are quite time consuming, involve
human physical resources around child find, elementary and
secondary education, the evaluation process, the planning
process for determining the kind of accommodations that the
child might need if eligible as well as procedural safeguards
that could include a due process hearing that could actually go
all the way up to the U.S. Supreme Court.
Interestingly, although this field has exploded in the area
of the Individuals with Disabilities Education Act in terms of
litigation and several high level court decisions, there has
been a virtual silence, if you will, in the area of section
504, which seems to imply to many of us that things have been
working well, pretty much.
I have three areas of concerns around the bill that I won't
go into detail about, but just highlight. One has to do with
the change in the new definition for ``substantially limits.''
I believe that given the comments in the House report that
this really would impact who would be eligible as a disability
and that it would include those students who actually might be
achieving higher than most students in the school district, the
higher achieving kids, if you will.
There is long precedents that that is not the case. It was
the poor performing students which is even a greater number of
children, and the third area would be around mitigating
measures that I will talk about later.
The last thing I want to say, as we know the school
districts, the IDEA gets no funds for their processes around
section 504 services and our advocacy for Medicaid funding has
not resulted in any relief.
Those are my concerns and I welcome the opportunity to talk
about them more.
Senator Harkin. Thank you very much, Ms. Gamm.
Now we turn to Terry Hartle, Senior Vice President of
American Council on Education.
Mr. Hartle.
STATEMENT OF TERRY W. HARTLE, SENIOR VICE PRESIDENT, AMERICAN
COUNCIL ON EDUCATION, WASHINGTON, DC
Mr. Hartle. Thank you very much, Mr. Chairman. I appreciate
the opportunity to participate in this roundtable discussion.
We would like to thank the Senate HELP Committee for giving us
the opportunity to be here to share our views.
Colleges and universities take their responsibilities under
the ADA seriously and are committed to providing greater access
to higher education and its benefits for all students including
students with disabilities. According to the Department of
Education, more than 10 percent of all undergraduates identify
themselves as students with disability, that's more than 1.8
million individuals. Our institutions have disability support
service offices with dedicated staff who respond to hundreds
and sometimes thousands of requests for educational
accommodation on an annual basis.
Based on an informal survey of large research universities,
we found the average university employs 17 individuals working
on disability issues with the largest institution reporting 60
professional staff. The average number of requests they deal
with per year ranges from 6,000 to 20,000.
Although our institutions are employers, and quite often we
are among the largest employers in the State, we have not taken
an issue with the broader disability definition of the bill or
its potential impact on us as employers.
But in our roles as academic institutions, the changes to
the definitions section have the potential to expand the scope
of students that we serve under ADA in ways that are difficult
to fully anticipate. Given the potential of these changes to
create new and challenging legal questions for institutions, we
believe it's crucial that Congress reaffirm the core principle
already present in case law protecting our institutions in
their traditional academic role.
Protecting the value of academic degrees and the academic
content of programs is of fundamental importance to our
institutions and to society. Our institutions are credentialing
bodies, and by awarding degrees we certify that certain levels
of educational attainment and achievement have been met. This
is the core of what colleges and universities do.
Therefore, I am here today to ask the Senate to reaffirm
directly in statute the current case law principle that
institutions need not provide an accommodation when doing so
would fundamentally alter the essential aspects of programs or
diminish the academic standards set by our institutions.
Given the difficulty that exists in predicting the impact
of this legislation on postsecondary institutions in ways the
courts will interpret this new legislation, we strongly urge
this committee to ensure that colleges and universities and the
quality of their academic programs are protected directly by
statutory language. Thank you for considering our views.
Senator Harkin. Thank you very much, Mr. Hartle. And now we
will close with Andrew Grossman, Senior Legal Policy Analyst,
Heritage Foundation, Washington, DC.
STATEMENT OF ANDREW GROSSMAN, SENIOR LEGAL POLICY ANALYST,
HERITAGE FOUNDATION, WASHINGTON, DC
Mr. Grossman. Good morning, Mr. Chairman, and thank you. My
greatest concern about the ADA Amendments Act is the definition
of disability. This legislation would wipe out nearly two
decades of precedence under the ADA and replace it with unclear
language that fails to provide any guidance whatsoever to
employers, the labor bar and the courts.
As I detail at some length in my written testimony, it
materially restricts language of the Amendments Act, which is
especially problematic. It is unprecedented in disability law
and the standard canons of statutory construction provide
little guidance as to how a court should interpret it.
Other changes in the legislation only exacerbate this
problem. If the drafters of this bill sought to cabin judicial
discretion in disability cases, they have failed. The
consequences of this failure will be great. Uncertainty will
lead to higher compliance costs for employers and increase the
cost of labor. The predictable result will be slower job growth
and a knock to the competitiveness of American businesses,
especially small businesses that are not exempt from the act.
Dramatically expanding the coverage of the ADA will raise
costs across the economy and concern at a time when inflation
is inching upwards, growth is slow and unemployment is on the
rise. If Congress nonetheless feels compelled to do so, it
should act in a way that imposes as little collateral damage as
possible by putting forward clear tests and definitions and
reducing risk and uncertainty for both disabled individuals and
employers.
Thank you.
[The prepared statement of Mr. Grossman follows:]
Prepared Statement of Andrew M. Grossman
My name is Andrew Grossman, and I am Senior Legal Policy Analyst at
The Heritage Foundation. The views I express in this testimony are my
own, and should not be construed as representing any official position
of The Heritage Foundation.
My testimony today concerns what may seem to some a narrow and
arcane topic: the definition of ``disability'' in the compromise
Americans with Disabilities Act Amendments Act ( ``ADAAA,'' H.R. 3195)
that passed the House of Representatives in June and is now before this
August chamber. It is anything but. As evidenced by the very fact of
this hearing, the precise definition is extremely important. It affects
the rights and responsibilities of millions of individuals and
employers and, over the long term, societal attitudes toward
disability. In addition, the exact workings of the Americans with
Disabilities Act (``ADA''), including this definition, impact the U.S.
economy and job creation. This topic is worthy of much attention and
consideration for all of these reasons, and I applaud the committee for
taking the time to address it and to consider the comments of those
testifying today.
The definition of disability is an essential piece of the ADA's
legal protections against discrimination. The ADA prohibits employers
with more than 15 employees from discriminating ``against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.''
\1\ Discrimination includes ``not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee, unless
such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered
entity.'' \2\ Thus, whether an individual is disabled determines
whether an employer must investigate and implement accommodations and
whether an employer is subject to liability under the ADA for failing
to do so.
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\1\ 42 U.S.C. Sec. 12112(a) (2008).
\2\ 42 U.S.C. Sec. 12112(b)(5)(A) (2008).
---------------------------------------------------------------------------
It is particularly important, then, that the definition of
``disability'' be clear so that employers can meet their obligations
under the law with minimal confusion and expense. Under current law, a
disability is ``(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual'';
``(B) a record of such an impairment''; or ``(C) being regarded as
having such an impairment.'' This statutory text has been applied by
the courts in a way that is considerably broader than the common usage
of the word ``disability.'' Thus, ailments such as erectile dysfunction
and high cholesterol have qualified as disabilities.\3\ Nonetheless,
the courts, following the lead of the U.S. Supreme Court,\4\ have been
relatively consistent in their adjudication under the ADA, providing
employers and the labor and disability bars with some notice of what
impairments are likely to be covered by the ADA. Though a small
business lacking inside counsel will usually have to consult outside
attorneys to determine whether an employee claiming a disability is
covered by the ADA and, if so, what accommodations are reasonable, in
many cases, the attorneys are able to render an opinion on these issues
within a few days at modest cost--around $1,000 in typical cases. Any
change to the definition of disability in the ADA must be made
carefully, because it will necessarily upset the reliance of employers
and their attorneys, increasing the costs of compliance as well as
their uncertainty and risk of liability.
---------------------------------------------------------------------------
\3\ Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75 (1st
Cir. 2006); Christian v. St. Anthony Medical Center, Inc., 117 F.3d
1051, 1053 (7th Cir. 1997).
\4\ See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
---------------------------------------------------------------------------
Though some media reports characterize the definition of
``disability'' in the current version of the ADAAA as a compromise,\5\
it is far from modest. It represents a radical expansion of the ADA
that would likely have far-reaching effects and unintended
consequences. The provision's great breadth, however, is obscured
somewhat by its structure. Unlike prior proposed amendments to the
ADA,\6\ the ADAAA retains the ADA's three-prong core definition of
``disability,'' making only one small change of arguably no substantive
import.
---------------------------------------------------------------------------
\5\ E.g., Karoun Demirjian, Bill Clarifying Legal Meaning of
`Disabled' Passes in House, CQ Today, June 25, 2008.
\6\ E.g., H.R. 3195, 110th Cong. (as introduced, 2007).
---------------------------------------------------------------------------
Unlike the current ADA, however, the ADAAA further defines two of
these terms. Under the bill, ``a major life activity'' includes nearly
anything an individual might do in a day. The text includes a non-
exclusive list of activities: ``performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating and working.'' \7\ Further, the definition also includes
``the operation of a major bodily function, including but not limited
to, functions of the immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.'' \8\ Though this definition
might seem unduly broad to observers unfamiliar with disability law, it
is only slightly broader than current law, under which sexual relations
and sleeping, among many others, have been found to be major life
activities.\9\
---------------------------------------------------------------------------
\7\ H.R. 3195, 110th Cong. Sec. 4 (as passed by House, June 25,
2008).
\8\ Id.
\9\ Scheerer v. Potter, 443 F.3d 916, 919 (Wis. 2006); Pack v.
Kmart Corp., 166 F.3d 1300, 1304-05 (Okla. 1999).
---------------------------------------------------------------------------
The greatest change in the ADAAA is that it would define
``substantially limits'' to mean ``materially restricts'' for the
purposes of the first prong of the definition of disability. Thus, any
impairment that ``materially restricts'' a person from performing any
major life activity, or impedes the operation of any major bodily
function, would constitute a disability for the purposes of the law.
Further, the ADAAA provides several ``rules of construction
regarding the definition of disability'' that would further broaden its
scope. These mandate that the word ``shall be construed broadly'' and
specifically extend its meaning to encompass impairments that are
``episodic or in remission,'' including those that are temporary.\10\
In addition, overturning the U.S. Supreme Court's decision in Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999), the bill requires that
``[t]he determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative
effects of mitigating measures . . .,'' such as medication, hearing
aids, or ``learned behavioral or adaptive neurological modifications,''
an apparent reference to an individual's ability to learn to work
around an impairment. The legislation specifically exempts from the
rule ``ordinary eyeglasses or contact lenses,'' which, unlike all other
mitigating measures, may be considered when determining whether an
individual is disabled.
---------------------------------------------------------------------------
\10\ See H. Rep. No. 110-730 Part 1, at 14 (2008).
---------------------------------------------------------------------------
Finally, the ADAAA strikes two legislative findings of the original
ADA that the U.S. Supreme Court has relied upon to determine whether
Congress intended to include certain impairments within the act's
coverage. One finding declared the number of disabled Americans--and
thus, presumably, the number intended to be covered by the act--to be
43 million at the time of its enactment, and growing.\11\ The second
provision, echoing much civil rights law and jurisprudence, declared
individuals with disabilities to be ``a discrete and insular minority''
subject to discrimination, implying that those not historically subject
to such discrimination are not ``disabled.'' \12\
---------------------------------------------------------------------------
\11\ See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471,
484-88 (1999) (``Had Congress intended to include all persons with
corrected physical limitations among those covered by the Act, it
undoubtedly would have cited a much higher number of disabled persons
in the findings.'').
\12\ Id. at 494-95 (Ginsburg, J., concurring) (``In short, in no
sensible way can one rank the large numbers of diverse individuals with
corrected disabilities as a `discrete and insular minority.' '').
---------------------------------------------------------------------------
The purpose of these changes, according to the language's drafters,
is to overturn the U.S. Supreme Court's decisions in Sutton, Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002),
and related cases that served to limit the coverage of the ADA's
protections.\13\ In Sutton, as mentioned above, the Court held that
mitigating measures should be considered in determining whether an
individual is disabled. In Williams, it held that ``substantially
limits'' means ``prevents or severely restricts,'' requiring that, to
qualify as disabled, ``an individual must have an impairment that
prevents or severely restricts the individual from doing activities
that are of central importance to most people's daily lives.'' \14\ The
Court also held that, under this formulation, the impairment's impact
must ``be permanent or long term.'' \15\ Without question, the ADAAA
rejects these precedents.
---------------------------------------------------------------------------
\13\ H. Rep. No. 110-730 Part 1, at 6 (2008).
\14\ Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184, 198 (2002).
\15\ Id.
---------------------------------------------------------------------------
Without, at this point, commenting on the merit of that intention,
I find great reason to doubt that the ADAAA's proposed replacement for
the current statutory understanding is consistent with Congress's and
the ADA's expressed purpose to provide ``a clear and comprehensive
national mandate for the elimination of discrimination'' and ``clear,
strong, consistent, enforceable standards addressing discrimination.''
\16\ Rather, the ADAAA's definitional text, though undoubtedly sweated
over by a great many lawyers and interested parties, fails to provide
clear guidance to the courts, the Equal Employment Opportunity
Commission (``EEOC''), which would be empowered to interpret the
definition in regulation,\17\ or employers.
---------------------------------------------------------------------------
\16\ H.R. 3195, 110th Cong. Sec. 2(b)(1) (as passed by House, June
25, 2008) (emphasis added); Americans with Disabilities Act
Sec. Sec. 1(b)(1), (2), 42 U.S.C. Sec. Sec. 12101(b)(1), (2).
\17\ H.R. 3195, 110th Cong. Sec. 6 (as passed by House, June 25,
2008). This provision overturned another holding of Sutton. Sutton, 527
U.S. at 479 ( ``Most notably, no agency has been delegated authority to
interpret the term `disability.' '').
---------------------------------------------------------------------------
The original ADA's definition of disability, as the courts were
quick to recognize, is no exemplar of clarity, but the act's structure
and findings allow for clear and consistent determinations in the bulk
of cases and provide guideposts for interpretation in closer cases.\18\
This, in turn, has allowed the accumulation of a large body of coherent
case law interpreting the ADA's scope and coverage. The result is that
those who have rights and obligation under the act--including
individuals with impairments and most employers--can rely on this body
of interpretation in conducting their affairs.
---------------------------------------------------------------------------
\18\ See, e.g., Sutton, 527 U.S. at 482.
---------------------------------------------------------------------------
Any attempt to overturn Sutton and Williams would necessarily upset
this case law and parties' expectations under it, but the ADAAA's
language is particularly pernicious in that it supplies a new and
untested vague standard for determining disability and mandates broad
construction of this standard, while compounding the uncertainty of
these commands by excising the guideposts that the courts have long
relied upon in interpreting the ADA.
The use of the phrase ``materially restricts'' is puzzling in
several ways. The foremost question, of course, concerns the continued
vitality and relevance of the phrase ``substantially limits,'' which
would remain in the statutory text even though a new definition--
``materially restricts''--is imposed upon it. The phrase cannot be a
mere semantic vessel, for its presence surely has some meaning. It is a
standard canon of interpretation that statutory text should not be read
so as to render portions of it superfluous.\19\ This reserved meaning,
in turn, necessarily affects the way that ``materially restricts,''
which would only partially supersede it, must be read.
---------------------------------------------------------------------------
\19\ See, e.g., CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951, 1964
(2008) (Thomas, J., dissenting).
---------------------------------------------------------------------------
As for ``materially restricts'' itself, recourse to the case law
provides no guidance. The drafters of this provision apparently decided
against adopting any standard that had seen significant use in the law
or the literature. A search of all Federal case law since the enactment
of the Rehabilitation Act of 1973 for this and related terms (e.g.,
``material restriction'') retrieves a total of two cases concerning
disabilities, one a bankruptcy and the other a district court
decision.\20\ Neither sheds much light on these terms save for that
materiality, in both instances, is mentioned as relating to something
other than its subject. For example, the bankrupt's carpal tunnel
syndrome was a material restriction of her ability to work as an
unskilled laborer.\21\ A search through the output of the State courts
is similarly unhelpful. Two New Jersey courts have touched on the term
(it is a paraphrase of a provision of the State's worker's compensation
statute \22\), both construing materiality as concerning a claimant's
ability to work--that is, to receive worker's compensation, a worker
must suffer an impairment that ``lessen[s] to a material degree'' his
or her working ability.\23\
---------------------------------------------------------------------------
\20\ Hughes v. Richardson, 342 F.Supp. 320, 332 (W.D. MO 1971); In
re Heath, 371 B.R. 806, 813 (Bkrtcy E.D. Mich. 2007).
\21\ 371 B.R. 806 at 813.
\22\ The relevant section: ``Disability permanent in quality and
partial in character'' means a permanent impairment caused by a
compensable accident or compensable occupational disease, based upon
demonstrable objective medical evidence, which restricts the function
of the body or of its members or organs; included in the criteria which
shall be considered shall be whether there has been a lessening to a
material degree of an employee's working ability. N.J. Stat. Ann.
Sec. 34:15-36 (2008).
\23\ Brunell v. Wildwood Crest Police Dept., 176 N.J. 225, 237
(2003); Mercado v. Atlantic States Cast Iron Pipe Co., 2008 WL 723773,
*3 (N.J.Super.A.D. 2008).
---------------------------------------------------------------------------
Federal statutory law provides no prior use of ``materially
restricts'' or any similar term, and the several appearances of these
terms in the Code of Federal Regulations concern tax law and various
types of contractual agreements.
Lacking any prior use from which to draw meaning, a court might
turn to the dictionary to ascertain the meaning of a term. Webster's
Third New International Dictionary, that regularly used by the U.S.
Supreme Court,\24\ informs that to be ``material'' is ``being of real
importance or great consequence.'' For this usage, it offers four
synonyms: substantial, essential, relevant, and pertinent. The first
three explain too little: The ADAAA, after all, dilutes ``substantial''
and rejects ``essential'' as too narrow, for it would be akin to
Sutton's ``prevents.'' The other two, however, explain too much: Any
restriction at all of a major life activity would be relevant or
pertinent to that activity. Decisions in a great many cases could hinge
on which one of these four words a court chose to apply. In this way,
the ADAAA's definition of ``disability'' utterly fails to cabin
judicial discretion, an avowed aim of its drafters.
---------------------------------------------------------------------------
\24\ E.g., Williams, 534 U.S. at 196.
---------------------------------------------------------------------------
The legislative history--to which some judges resort when statutory
language, as here, is vague--provides no clear answer either. It
counsels that ``materially restricts'' is ``intended to be a less
stringent standard to meet'' than that propounded in Williams.\25\
Elsewhere, the drafters advise that ```materially restricted' is meant
to be less than a severe or significant limitation and more than a
moderate limitation, as opposed to a minor limitation.'' \26\ The
drafters then refer to the ADAAA's rule of construction that ``To
achieve the remedial purposes of this Act, the definition of
`disability'. . . shall be construed broadly.'' \27\ Yet, as discussed
above, the relevant guideposts in this inquiry--the approximate
proportion of the population Congress intended to be covered by the act
and the nature of the discrimination suffered by that population--would
be excised from the law. Without these touchstones to reality,
regulators and the courts will find it difficult or impossible to
conceive any coherent limiting principle that works to affect only
``the elimination of discrimination'' against the disabled without
interfering in other relationships.
---------------------------------------------------------------------------
\25\ H. Rep. No. 110-730 Part 1, at 6 (2008).
\26\ Id. at 10.
\27\ Id.; H.R. 3195, 110th Cong. Sec. 3 (as passed by House, June
25, 2008).
---------------------------------------------------------------------------
Some supporters of ADAAA recognized the opaqueness of the bill's
text and, fearful that courts might actually attempt to interpret it
verbatim and reach an overly broad, though not precluded, result,
inserted this in the legislative record:
``Persons with minor, trivial impairments such as a simple
infected finger are not impaired in a major life activity,''
and consequently those who had such minor and trivial
impairments would not be covered under the [original] ADA.
We believe that understanding remains consistent with the
statutory language and is entirely appropriate, and we expect
the courts to agree with and apply that interpretation. If that
interpretation were not to hold but were to be broadened
improperly by the judiciary, an employer would be under a
Federal obligation to accommodate people with stomach aches, a
common cold, mild seasonal allergies, or even a hangnail.
Consequently, we want to make clear that we believe that the
drafters and supporters of this legislation, including
ourselves, intend to exclude minor and trivial impairments from
coverage under the ADA, as they have always been excluded.\28\
---------------------------------------------------------------------------
\28\ H. Rep. No. 110-730 Part 2, at 30 (2008).
It is a small relief that several drafters of this legislation
``believe'' that it would not require an employer to accommodate an
individual with a hangnail, but nothing in the actual legislative text,
however, compels any court to reach that result. Indeed, the text seems
to require otherwise; if, as discussed above, minor visual impairments
that can be mitigated with standard eyeglasses are not disabilities,
then presumably similarly minor impairments that cannot be so mitigated
would be disabilities--the legal doctrine is known as expressio unius
est exclusio alterius, or ``the expression of one thing is the
exclusion of another.'' The inevitable result: arbitrary, inconsistent
case law and potentially debilitating legal uncertainty for many
businesses.
To this contention, the legislation's supporters respond that their
aim is actually the quite modest shift of focus from disability to
discrimination:
Too often cases have turned solely on the question of whether
the plaintiff is an individual with a disability; too rarely
have courts considered the merits of the discrimination claim,
such as whether adverse decisions were impermissibly made by
the employer on the basis of disability, reasonable
accommodations were denied inappropriately, or qualification
standards were unlawfully discriminatory.\29\
---------------------------------------------------------------------------
\29\ H. Rep. No. 110-730 Part 1, at 8 (2008).
Within this contention, though, is its own rebuttal. A finding of
disability, under current law a prerequisite to an ADA complaint, is
additionally a prerequisite, in the logical sense, to addressing a
claim of discrimination. An example: Polly has, in recent months,
increasingly missed work without providing notice to her employer,
Donald. She informs Donald that she suffers from major depression and
requests two accommodations: a job coach and greater flexibility in
taking days off without providing advance notice. Even if these
accommodations are reasonable, Donald's refusal to provide them may not
constitute discrimination if Polly is not disabled. Under the empty
standard proposed in the ADAAA, but certainly not under current law,
Polly's occasional fatigue and feelings of self-doubt could well be
sufficient to render her impairment a disability and thus Donald's
refusal to accommodate discrimination. Resort to the question of
Polly's qualifications or the ``business necessity'' of showing up does
not avoid this inquiry.\30\ Logically, it is impossible to reach the
``merits'' of a discrimination claim without determining the predicate
for that discrimination: whether the individual is, or has been
regarded as, a member of the protected class. Thus, any change to the
definition of disability made to encourage courts to hear the merits of
a disability claim will necessarily alter the substance of that claim.
In this way, ADAAA may effect a far broader change than even its
supporters claim or realize.
---------------------------------------------------------------------------
\30\ See 42 U.S.C. Sec. Sec. 12112(b)(4), (6).
---------------------------------------------------------------------------
The impact of this change on employers could be severe. It is
evident that, under the ADAAA, accommodation costs would rise, as more
workers become entitled to more accommodations. That, after all, is the
point of the legislation. But there are still more expenses, many of
which would be due to the current legislation's lack of clarity. At the
same time that a much larger portion of the workforce would fall under
the ADA's protections, the law would also become far more uncertain,
driving up compliance costs and legal expenses.
Among employers, small businesses are likely to suffer
disproportionately, as is usually the case when there is regulatory
complexity or legal uncertainty. Larger firms have the structure in
place--general counsel offices, compliance officers, and disability
consultants--to determine their legal obligations and perform them in a
relatively efficient manner. For a small business, however, the costs
of compliance on a per-employee basis are far higher. To accommodate a
single disabled employee, a small employer may need to bring in a
number of outside experts, including a labor lawyer, an ADA consultant,
and even an ergonomics expert or engineer. These expenses have a
serious impact on the bottom line. By requiring the expertise of
outside professionals, such laws put small businesses at a competitive
disadvantage to larger firms, which can spread increased costs across
their entire workforce.
For all employers, legal uncertainty, especially concerning the
risk of liability for discharging an employee, undermines the doctrine
of at-will employment. Under ADAAA, most employees could claim they
have an impairment, such as asthma or chronic stress, and sue if they
were either laid off or not hired in the first place, contending
discrimination. Even when the employment decision had nothing to do
with the claimed impairment, the employer would still face expensive
litigation and be far less likely than today to prevail on a motion for
summary judgment relatively early in the litigation. The result:
Employers would be less willing to hire new employees and job growth
would be reduced. This has been the consistent pattern in countries
that more greatly restrict at-will employment by providing greater job
protections to employees.\31\
---------------------------------------------------------------------------
\31\ Hugo Hopenhayn & Richard Rogerson, Job Turnover and Policy
Evaluation: A General Equilibrium Analysis, 101 J. Pol. Econ. 915, 938
(1993); Adriana D. Kugler & Gilles Saint-Paul, Inst. for the Stud. of
Labor, Hiring and Firing Costs, Adverse Selection and Long-term
Unemployment, IZA Discussion Paper 134 (2000).
---------------------------------------------------------------------------
The ADAAA would also increase employee abuses under the ADA. Due to
legal uncertainty, employers would likely be even more loathe than they
are today to contest borderline claims of disability in the courts, for
fear of incurring large legal expenses and potentially large
liabilities. This is another consequence of combining vague legal rules
that make it difficult to evaluate the merit of litigation with relaxed
limitations on coverage.
This concern is not just hypothetical; there is strong evidence
that some workers have taken advantage of similar protections recently
enacted by Congress. Many workers, for example, have abused the Family
and Medical Leave Act (``FMLA''), which requires covered firms to
provide their employees with up to 12 weeks of unpaid leave per year,
with their job guaranteed during that time, that may be used when an
employee suffers a serious health condition or is caring for a family
member who does. Though most workers use the leave allowance only when
necessary, many use it simply to take time off at will, such as to
avoid rush hour traffic and enjoy more frequent 3- and 4-day
weekends.\32\
---------------------------------------------------------------------------
\32\ See generally, James Sherk, The Heritage Foundation, Use And
Abuse Of The Family And Medical Leave Act: What Workers And Employers
Say (2007), available at http://www.heritage.org/Research/Labor/
sr16.cfm.
---------------------------------------------------------------------------
As my Heritage Foundation colleague James Sherk has chronicled in
great detail, it is coworkers who often bear the greatest burden of
FMLA abuses. Conscientious employees suffer each time they have to
cover the work or work unscheduled overtime when a coworker abuses
FMLA. In many instances, employees also suffer reduced pay and bonuses
due to FMLA abuse.\33\
---------------------------------------------------------------------------
\33\ Id.
---------------------------------------------------------------------------
Slower job growth leading to reduced potential employment would be
most businesses' response to any change in the legal environment that
increases the cost of labor--a troubling result at a time when economic
growth has slowed and unemployment is already inching upwards. If
Congress nonetheless feels compelled to expand the ADA's protections to
an ever-larger body of workers, it should do so in a way that imposes
as little collateral damage as possible by putting forward clear tests
and definitions and reducing risk and uncertainty for both employers
and their workers.
It is an unfortunate and, to date, underappreciated risk that the
ADAAA's radical expansion of ADA coverage may injure those who, subject
to severe disabilities, who are undisputedly covered under the current
law. A common accommodation for disabled workers, for example, is
reassignment to a position that is less physically taxing, and no
doubt, in certain industries, many employees, both disabled and not,
wish to hold these positions. If all available slots are held by mildly
disabled employees or employees abusing the ADAAA's protections, truly
disabled individuals will have fewer alternatives available and, if
unable to perform their current jobs, may be laid off, because creating
a new position is not required by the ADA. Overall, it is likely that
fewer resources would be available under the ADAAA to accommodate
severely disabled individuals.
It should also be noted that the ADA has not been an unqualified
success for individuals with disabilities in the workforce. Though no
single explanatory theory is dominant, the evidence is strong that the
disabled earn less and work far less than they did prior to enactment
of the ADA, a period during which those who do not identify as disabled
increased their workforce participation and earnings.\34\ A number of
economists, including MIT's Daron Acemoglu, blame the ADA for the
reduced opportunities of the disabled.\35\ Other critics contend that
the ADA has done little more than produce occasional windfalls for
plaintiffs and attorneys.\36\ According to Acemoglu, as of 1997,
employers faced 40,000 lawsuits per year under the ADA and spent, on
average, $167,000 to defend themselves.\37\ Labor markets are complex,
and it is difficult to intervene in them to produce specific results
without encountering unexpected consequences. The risk that a broader
ADA will redound to the detriment of those it is meant to protect
cannot, based on the data, be overlooked or discounted.
---------------------------------------------------------------------------
\34\ Richard Burkhauser & David Stapleton, Introduction, in The
Decline In Employment Of People With Disabilities 3-4 (2003).
\35\ Id. at 16-17; Daron Acemoglu & Joshua D. Angrist,
Consequences of Employment Protection? The Case of the Americans with
Disabilities Act, 109 J. Pol. Econ. 915, 957 (2001).
\36\ Ruth Colker, The Disability Pendulum: The First Decade Of The
Americans With Disabilities Act 71-72 (2005).
\37\ Acemoglue & Angrist, supra note 35, at 920.
---------------------------------------------------------------------------
Many of the problems that I have identified with the approach of
this legislation can be corrected through more diligent re-drafting,
though those economic effects stemming from the bill's central
purpose--expanding the ADA's reach--may require changing the substance
of the legislation in significant ways. To both those ends--fixing and
reworking the current legislation--I offer the following suggestions:
1. The term ``materially restricts'' is not readily susceptible to
any apparent meaning and should be removed from the legislation. Rather
than propound a vague definition and then demand that courts construe
it broadly, Congress should put forward a clear definition (or retain
the current one) and rely on the courts to employs the standard canons
of construction to give statutory text meaning. If it is Congress's aim
to expand ADA coverage so that it includes the majority of Americans or
more, it should do so explicitly, and accept the consequences, rather
than foisting the task on the courts.
2. The current three-prong definition of ``disability'' is
valuable, for all the case law and interpretive history built upon it,
and significantly changing or modifying it will destroy this value.
Congress should be very wary of enacting sudden, dramatic changes that
would throw the law into turmoil. The ADAAA, as it currently stands,
would be such a change.
3. The legislative findings that the ADAAA would strike from the
ADA have proven to be an essential tool for courts attempting to apply
the ADA's principles and often vague language to real-world disputes.
If Congress believes that these provisions mis-state its intentions, it
should fix them rather than strike them. The ADA's findings should
continue to state Congress's best estimate of how many Americans it
intends to have covered by the act.
4. Though doing so will have adverse economic consequences,
reversing Sutton can be achieved in the context of a much more modest
bill that does not otherwise modify the ADA's three-prong definition of
``disability.''
5. Granting the EEOC power to promulgate regulations under the non-
article sections of the ADA will advance legal certainty and improve
compliance. This step alone may be sufficient to accomplish much of
what drafters of the ADAAA hope that it will achieve.
6. The subsection on mitigating measures, as drafted, excludes
ordinary eyeglasses and contact lenses, recognizing that mild visual
impairments, such as are suffered by millions of Americans, are not
disabilities. Congress should extend this reasoning and, at the least,
exclude from the mitigating measures rule other prevalent ameliorative
devices, such as certain types of hearing aids and joint braces.
The ADA Amendments Act, as currently drafted, is so vague that it
is impossible to say with any degree of certainty that courts would
uniformly decline to find such minor impairments as hangnails, tennis
elbows, and infected cuts to be disabilities. The consequences of this
confusion in the law would be significant, affecting millions of
businesses and their employees, as well as the health of the national
economy and American businesses' international competitiveness. If
Congress's intention is to radically expand the coverage of the ADA, it
should be clear in its mandates and do so with full transparency,
accepting responsibility for its policy choices.
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Heritage Foundation or its board of trustees.
Senator Harkin. Thank you very much, Mr. Grossman. Thank
you all very much for keeping those comments short and to the
point.
I was jotting some notes down this morning before we
started the hearing. One of the things we want to do here is
get a better understanding of what materially restricts means.
Second, we wanted to provide an opportunity for education
groups to be heard and have input into this and we are hearing
that right now and allow members of the committee to express
their concerns. As mentioned, we took a big step forward with
the House bill, 402 votes. I want to keep that momentum going.
We may have to change some things. We will write a Senate bill
sometime this month and hopefully get it done this year.
First of all, let's go to the question of education. What
is it that seems to be problematic? Now we heard from Ms. Simon
and then Ms. Gamm took an opposite position and so did Mr.
Hartle. One with sort of higher education, as I understand it
and one with K through 12.
What is it in this bill that again--let's flesh this out--
causes you the most concern?
As I read it, as I understand it, I've talked to the staff
and I worked with this for 20-some years now, that there is
nothing in here that changes what was an issue in 504 anyway,
that we lived with since 1973 and that you lived with since
1973.
If nothing has changed I'm trying to get a handle on what
is problematic here. Because we don't change the fundamentally
altered--I believe Ms. Simon mentioned that. That there is
nothing in here that changes that language. That if something
fundamentally alters a test, for example, then it does not
apply. So, I need to get a handle on what we need to be
concerned about in terms of education. It seems like you are
already covering these kids anyway.
Ms. Gamm. I'm not concerned about the fundamentally altered
provision--that's not my concern. My concern is the new terms
that is being introduced around material restriction. And some
of the comments that were specifically included in the House
congressional report, which quite frankly took my breath away.
You would not have read that in the act but reading that full
report gave me a much different perspective in terms of at
least what the House intended.
And it's in two areas. One is by implication resulting from
the first area and that is a new application that would, I
believe, contradict what has been in terms of the ADA and its
application with section 504.
For example, in the original 1990 House committee report
there was a specific statement in there that said a disability
would apply when a major life activity is restricted in the
conditions, manner, or duration under which they can be
performed in comparison to most people. That directly
contradicts statements in the House report that just came out
that would say that would not be the standard and individuals
who actually are performing at a very high level of academic
success would in fact be covered and entitled to accommodation.
That opens up a huge range of individuals who under IDEA law--
there has been three appellate court decisions that do not have
that standard. They say if a student is performing well in
school, that would be something to be taken into consideration
as well as the very few number--I can count them on two hands
the number of cases that I was able to find recorded either by
a hearing officer or office of civil rights or a court decision
that went the same way. That's one huge change.
The second is while we are talking about high performing
kids--what about low performing kids? There is a very
interesting chart in rethinking learning disabilities that I
submitted to you on page 5 where researchers are now looking
at, this is actually one of the very important changes in the
reauthorization by the IDEA in regulations that followed around
what is a learning disability. And as we know in the area of
special education, that's almost 50 percent of all kids have
mushroomed through the years in the area of learning
disabilities and I think this chart is incredible in that it
shows what the research has shown, that it's very difficult to
determine whether a child's difficulty in reading is due to
what might be a statutory defined learning disability as
opposed to a child that begins school with insufficient skills
and does not have the phonemic awareness that you need, the
building blocks of reading, does not get instruction to change
that and as a result has difficulty reading in life.
Here we see in this chart, there are two lines of kids with
learning disabilities under the statute and the same under-
achieving line, virtually the same, of kids who don't meet that
burden under the IDEA, but nevertheless are not readers.
So my concern is for the under-achieving kids--we don't
know if the changes in definition will actually open up the
door and have a legally protected right and legal procedures
under this bill.
Senator Harkin. We have two situations here. Under IDEA, we
don't have to worry about that. That is taken care of. IDEA is
taken care of, with an IEP. We know what that is. It seems to
me that the problem we have here is 504. Is that right?
Ms. Gamm. However, under the regulations, the original
regulations with the U.S. Department of Education they actually
talk about the synergy between the two and that under 504 you
look at IDEA and there is a relationship between the two,
especially in the area of learning disabilities. My concern is
whether this change in definition. I don't know. But it could
have an impact and could broaden the definition of who has a
reading disability.
Senator Harkin. Some of this may be over my head. Could
somebody help me out here?
Ms. Simon. Senator, I would be happy to address that.
Senator Harkin. If you want to speak to the topic, turn
your card on end or signal me and I'll call on you.
Professor Bagenstos is first, I think.
Mr. Bagenstos. A couple of points about that. One is that
although the regulations under 504 do reference the IDEA, there
is case law and these cases get decided on a weekly or monthly
basis that say, ``Well, this is a student who is not eligible
under IDEA, but may have a disability under section 504 and
therefore doesn't get an IEP and all the same IDEA
requirements.'' The statutes have different requirements in
them and there is a synergy between them. It makes sense in a
lot of cases there is an overlap, but by extending the ADA or
section 504 to these children it's not going to incorporate all
of the IDEA obligations, child find obligations to ADA is quite
clear under the case law that it is an obligation to
accommodate a disability that's known or at least that there is
some particular reason to believe that their covered and should
have been known. That is you don't have to go out and see
whether or not this person has a disability and these other
obligations under IDEA. I think we can. I think you are right,
Senator Harkin, we can deal with them as separate, and deal
with the terms of this statute as the terms of this statute.
Senator Harkin. It seems to me that IDEA is so clear cut
and so separate and apart that we don't have a problem with
that.
Ms. Gamm. My concern is that that's true, but that this
change would actually broaden an addition under 504, a whole
new group of children that we are serving but not currently
under the strict procedural requirements of section 504.
Senator Harkin. OK.
Ms. Gamm. That was my concern.
Senator Harkin. Anybody else want to comment on this at
all?
Ms. Simon.
Ms. Simon. Yes, thank you, Senator. I think the problem is
that we have an exhaustion requirement under IDEA, an
exhaustion of the procedural remedies. So for a child who might
be arguably covered by both statutes, when a parent has a
dispute with the school system they have to exhaust the
administrative remedies under IDEA anyway. The issue really is
that IDEA is taken care of. To the extent that this would
expand the number of students who might be protected, I think
it is very important to recognize that protection is not the
same thing as services. There are many ways in which a
student's rights might not be fulfilled, but that may not mean
that there is any need for procedural requirements or for due
process or for expensive services.
I also think that the issue about learning disability
(L.D.) gets raised all the time in terms of low performance.
There are two reasons why this may happen. One is a common
misperception that learning disabilities are the same thing as
low intellectual ability. They are not. So, the fact that
someone who does well because of accommodation or class size
doesn't mean they don't have a learning disability.
A learning disability is a processing disorder, it's not an
academic disorder. It may be demonstrated in academic
difficulties but it need not be demonstrated in academic
difficulties. The problem is when you try to make one thing
something else, you then lose the essence of what it is. It is
very important that students with learning disabilities get the
right kind of instruction. And to the extent that the chart
that was shown before indicates that they fall off along with
students who have low achievement may, in fact, be an issue
with regard to instructional responses as opposed to whether or
not those students have a disability and would be protected by
the law.
I think that the way that we can be assured that we are
protecting students who need protection is to have a thorough
comprehensive clinical assessment of how that child learns.
That will separate out those students who have a processing
disorder or learning disability from those who have an academic
disorder. Thank you.
Senator Harkin. Professor Feldblum.
Ms. Feldblum. If I can add some clarity to this
conversation. Sue says that she is concerned that there is
going to be a whole new group of students now under section
504--that schools she has been consulting with and advising,
who want to do right by the kids, are suddenly going to have a
whole new group. And I'm sitting here telling you we don't
think that is going to be the case.
In fact, as we went through this language we thought about
all entities under the law, not just employers. So how can both
of those things be true? This is how I see it. The schools have
been dealing with the words ``substantially limits a major life
activity,'' but they have not been taking the U.S. Supreme
Court cases that allow them to say, that kid with epilepsy,
that kid with diabetes, that kid with bad asthma, you don't
have to do anything for them because with the medication, they
are not disabled.
Schools haven't been doing that. They have been doing the
accommodations for kids with epilepsy, diabetes, and severe
asthma. They have been doing that. The only time, and I've read
all the cases, where schools have come and said, ``this kid
with asthma does not have a disability'' because with the
medication the kid doesn't have a disability, is when they have
done amazing accommodations for the kid already and the parents
are saying, ``no, no, I still want more.'' Where the court
could have decided, ``yes, the kid has a disability but you
have done everything you need to do school.'' Instead, in a few
cases the courts have done what they have done with employment
and said ``that kid doesn't have a disability.'' What is
happening is that, there was a change in the definition that
was done by the U.S. Supreme Court by saying, ``You look at the
medication, take that into account.'' Because those cases arose
in the employment context, they were mostly used in the
employment context. In the school context, it's sort of like
they had that opportunity, they didn't really pick it up. It's
not that they didn't use it at all. Like I said, in some
litigation they did use it. But in their practice they didn't
pick it up. If this Senate would pass the original ADA
Restoration Act as introduced then I understand the concern,
because it really was a different standard.
But the ADA Amendments Act, what the employer community
asked for and got, was essentially the same definition
``substantially limits a major life activity,'' but by using
the term materially restricts, simply saying to the courts, we
don't want the over-the-top strict standard that you applied
before.
So, I understand the fear because it's a new piece of
language, but it is not a new piece of language intended to
expand the students that they serve right now. One thing that I
heard here that is slightly different from Sue today is the
concern that somehow we are trying to change the rule that you
decide whether someone's impairment substantially limits an
activity by looking at the manner, condition, or duration of
that impairment. That is not the intention of those of us who
have been working on this bill to change. In fact, that was
discussed clearly. The employer community wanted to make sure
that standard still applied. As you heard from Jo Anne Simon,
someone with a learning disability is different in the manner
in which they learn, OK? And that is not intended to be
changed.
I do understand that there might have been some concern
with some report language, and that is something that can be
discussed in terms of doing it differently but there was not an
intention of changing that comparitor standard.
Senator Harkin. This brings to light one of the reasons we
wanted to have people from education here because we had heard
obviously from the education community that there were problems
here and I wanted to get this aired. I'm not sure I understand
all the implications here, but just listening to this, Mr.
Hartle--if you have anything to add to that?
Mr. Hartle. Our concern is a little different, Senator. We
believe that the ADA Restoration Act will increase the number
of people who are eligible for services and we will provide
those.
But we are worried that the provision of current law that
says accommodations do not have to be provided if they alter
the essential elements of the academic program could be
impacted by the legislation. Indeed the purpose of this bill is
largely to overturn existing case law that people believe has
narrowed the reach of ADA. And the House report specifically
rejects the findings of several higher education cases, and in
light of this we think it's important to make clear that
current case law regarding the essential elements of the
academic program be reaffirmed in the statute.
We think it's important that current case law provisions
regarding the ability of institutions to make decisions based
on the essential elements of the academic program be reaffirmed
in the statute.
Senator Enzi. I want to note that as we move through this
process, we may have additional questions. If we do have
additional questions, we will get them to you and hope you can
provide us with supplemental responses. There are a lot of
people who aren't here, and we will encourage them to read the
information you provide, some of which is very technical and
may require additional clarification. So I would appreciate it
if you would respond to those questions as quickly as possible.
Senator Harkin. I am trying to figure something out, Mr.
Hartle. Would you repeat the last statement that you made for
me again? You said you did not want to see essential functions.
Mr. Hartle. The essential elements of the academic program.
Senator Harkin. The essential elements of the academic
program altered?
Mr. Hartle. If someone wanted to get a Ph.D. in comparative
literature, you have to be able to read and speak foreign
languages, to get a Ph.D. in comparative literature. Current
case law would reaffirm that, we would not have to make an
accommodation in that particular case. What we are concerned
about is that the statute's language you are considering may
weaken the protection we currently enjoy in current case law
that says we don't have to grant accommodation if it changes
the fundamental nature of the program.
Senator Harkin. And that was not changed in the bill?
Mr. Hartle. It wasn't changed in the bill but we are afraid
the courts will look at this legislation which substantially
changes ADA.
Senator Harkin. We did not change that in the bill, and I
don't know about your concern with the courts changing it, but
I will say this from my standpoint and this goes way back. A
lot of times programs are set up with the best of intentions.
Education programs are set up with the best of intentions and
these harken back to old ways of doing things. Sometimes
especially in higher education and when you look at the modern
world and what people are doing these days with the Internet
and that type of communication skills, that perhaps some of the
things that were laid down by higher education communities in
the past in order to get a certain degree or a certain diploma
of higher education, whatever those requirements were, don't
apply in the modern age, and some of them may need to be
changed. And if they don't do it internally, maybe the courts
should look at that and say, ``why is it necessary for someone
who wants to get a Ph.D. in comparative literature to be able
to speak a foreign language if, for example, they can't
speak?'' Say they have cerebral palsy and they don't have a
language skill but they have every other skill. They can
communicate perfectly well over the Internet. But they may not
be able to communicate verbally. What is wrong with that, I
ask?
Mr. Hartle. Senator, comparative literature is the study of
literature written in foreign languages, and to get a Ph.D. in
comparative literature, it's a basic requirement that you have
to be able to read a foreign language.
Senator Harkin. Read is different. You said speak.
Mr. Hartle. Reading is different. One of the most frequent
requests we get for accommodation are from people who want a
foreign language requirement waived. So the issue here is
simply to say, we want to protect the academic integrity and
standards of institutional programs so that the degrees
continue to mean what they have meant in the past.
Senator Harkin. I am challenging you a little bit on this.
I don't mind institutional integrity if the institutional
integrity is not based on antiquated conceptions and dictums
handed down from centuries ago that have no real relevance in
today's world. I don't mean to single out higher education,
there are a lot of those in this institution, too, by the way,
in Congress. So those fundamental things have to be challenged
once in a while. The idea of reading rather than speaking seems
to be an accommodation to me. That's an accommodation. It's not
fundamentally altering anything. That's an accommodation. Isn't
that what we are about, providing those kinds of
accommodations? I don't see that as a big concern.
We don't change that fundamentally altered, we leave that
alone. But, you may be right--courts may in the future look at
a case and say, ``Why is this a requirement? Why do you have
it? What is the essence of this requirement that you may have
for a degree or something else? Is it pertinent to today's
life, the way we live?''
The court may say, ``Under the accommodations exception
here, you need to provide an accommodation for this
individual.'' I personally don't find anything wrong with that,
as a matter of fact. I think that's the evolution of society.
As we progress as a society and we see those kinds of
changes made, some are done legislatively, some have been
through common law through our court systems. But we left it
there, ``fundamentally altered.'' But I'm not saying that
sometime in the future the court might not look at something
like that and decide to reach a different conclusion. I can't
protect you against that. That's common law.
Mr. Hartle. It would protect us if there were a provision
in the statute that ensured that the fundamentally altered
provision remains.
Senator Harkin. The only way we can protect that is to say
that in the institution of higher learning, or any other
institution, whatever they set down as their requirements, a
court can't challenge that, a person can't challenge that. We
can't do that.
Mr. Hartle. They can be challenged, Senator. The
institutions would have to demonstrate that it is a fundamental
element of the academic program. It doesn't give the
institutions carte blanch to act badly and there is nothing in
the record over the last 18 years to suggest that colleges and
universities wouldn't try to be as accommodating as possible.
Senator Harkin. I think that is right. And I would think
that there would be a presumption on the part of the individual
that an accommodation could be made, it would have to be up to
the university to show that whatever rules or regulations that
they are abiding by overcomes the civil rights protections of
ADA or 504. Somehow that overcomes the broad civil rights
protection and I think that's a pretty high hurdle to overcome.
You might be able to show that. But I would think you have to
overcome the civil rights protection that an individual would
have who has a disability.
To close out on education--I want to move to materially
restricts--would you on the education side, are you telling us
that we need a better definition of ``materially restricts?''
Is that what you are saying?
Ms. Gamm. Yes, that and also in terms of looking at
mitigating measures in terms of elementary and secondary. For
example, as was pointed out, students would require a thorough
clinical assessment.
The question becomes now, are there are many, many more
students that are required to get that thorough clinical
assessment?
Senator Harkin. I think that is very legitimate.
Ms. Gamm. Right now, for example, I would agree with you
100 percent. The districts are doing lots of plans for kids
with different health impairments. The issues are most of those
plans--as I have talked to my colleagues--are very informal and
probably would not reach the threshold of an OCR review in
terms of the 504 regulation. Because they don't view them as
necessarily disabled under 504, they view them as kids that
need some assistance.
For example, I was talking to Chicago and they were
thinking about doing more informal plans as opposed to formal
504 procedures. Which, trust me, I monitored for 13 years in
school districts. They expect to see the I's dotted and the T's
crossed.
Senator Harkin. What does ``materially restricts'' mean?
Ms. Gamm. I think we don't know.
[Laughter.]
Senator Harkin. Mr. Grossman. You had your hand up.
Mr. Grossman. Yes, Senator. In my written testimony I've
gone through and applied the standard statutory approaches to
determining meaning of statutory language. I think the language
is challenging in the sense that this language is unprecedented
in the disability context. In other cases in which courts have
construed the term materiality, they have always relied upon
generally common law or other statutory history that builds up
over many, many cases that gives a gloss on the word and that
shows how it is limited and how it is to be applied. In other
words, it's the history of the case law that allows legislators
to use the word in such a way that it cabins judicial
discretion. In this case however that body of case law does not
exist. The other methods of statutory interpretation that the
courts regularly apply are similarly unavailing of a concrete
definition.
Indeed, references to other portions of the statute which
the courts have made before in construing the ADA would be
altered by the Amendments Act. It's sort of removing another
touchstone that the courts might apply to determine the precise
meaning of that language. Without there being any sort of
limiting principle inherent in the language itself there will
be confusion and I think that's very evident in the two House
reports on the bill. The members who contributed to the House
reports have a different understanding of what this actually
means, what it would require and what it would not require.
That confusion reasonably reflects the actual text of the
statute. I think what you could expect to see is that courts
would be free to stamp their own policy preferences upon the
law to prevent what they see as bad results. In some cases that
may align with Congress' intent but in other cases it may not.
I don't think there is anything in the statute that would
necessarily prevent courts from interpreting and exercising
their discretion under the statute in that way.
Senator Harkin. Professor Bagenstos, I read your statement
last night, and you had something in there about that. What say
you on this?
Mr. Bagenstos. As an introductory point, the reason why we
are here, is because courts have stamped policy preferences on
the original ADA's definition of disability. This is trying to
stop it. If you look at the term ``material,'' it's not a term
that just appears in one place in the law. It appears all over
the law.
There is material omission, material misrepresentation,
material breach, material adverse change, all over the law. And
so that it's unprecedented in the disability discrimination law
context, I don't think it's that significant from the
perspective of courts developing a body of case law that makes
consistent and clear understanding of this term.
What I would say about this is one of the things that was
true, going back to the original ADA, is the notion that
disability is not--we have a clear line, you're in a group,
you're defined as disabled for everything in your life. It's a
very individual characteristic going back to the very
beginnings of the work that you did, Senator Harkin, on the
ADA. Disability is not something where we can just say you have
X condition, therefore, you are disabled. It requires an
analysis of particular facts. The materiality standard is a
standard that is used in the law to address particular facts in
widely varying fact situations to make sense of the law. I
think that because it's so common, because it's so well
understood by judges, it's something that will develop a case
law that will be very consistent.
As I say in my testimony, if you are concerned about how do
we elaborate this, can we elaborate this more? There are
definitely ways that you could elaborate this more. You could
elaborate this more by taking what I understood both Sue Gamm
and Chai Feldblum to agree on, which is the notion that we are
talking about condition, manner, or duration here when you are
talking about materially restricts.
You could elaborate that by saying something like
materially restricts refers to a restriction on the condition,
manner, or duration of an individual's ability to engage in a
major life activity as compared to that of either the average
person or most people which are the different terms used in the
different regulations under the ADA. EEOC v. DOJ.
You could do that, and that might well add a little bit
more confidence in people that there will be consistency and
clarity here. But the term itself is one that is well known in
the courts. When there have been attempts to create per se
rules, saying this isn't material or this is material. The
courts have said, we don't need that, because we know what
material means.
Senator Harkin. Ms. Simon.
Ms. Simon. Thank you, Senator. I would just like to add a
brief comment to the professor's discussion here. And that is
that one of the things that I think we need to do is exercise
common sense when we review these situations.
And that is, if you take the statement that professor just
talked about, whether someone is restricted in the condition,
manner, or duration in which they perform the activity compared
to that of other persons, it becomes very obvious that what we
are comparing are the condition, manner, or duration in which
one person performs an activity versus the condition, manner,
or duration in which another person does.
So the person who walks with two artificial limbs is
walking, and he may actually walk quickly in certain
circumstances, but he's doing it in a fundamentally different
way, a materially restricted way. I think what is important is
to make sure that we are comparing like things. When we compare
performance outcomes to the manner in which someone performs,
we end up comparing apples and oranges and we end up with fruit
salad and then we are just confused.
I think what is important is that we start separating
things out so we start comparing that which needs to be
compared and not muddying the waters.
Senator Harkin. Professor Feldblum.
Ms. Feldblum. My comment actually will follow right on
that, I hope. As you heard, the point about putting in the
words materially restricts was simply to communicate to the
courts that what they had done with the word ``substantially
limits'' was too strict, too tough, excluded too many people.
The original S. 1881 had no limitation at all. It would be any
impairment.
In our original conversations we wanted to cover only
impairment with more than a minor impact, just more than a
minor restriction. That wasn't enough for the business
community. They needed something that was a higher level of
severity and ultimately the disability community agreed with
the higher level of severity because once you don't take into
account mitigating measures, we believe you will cover the
people with the impairment that should be covered. That's why
we also do not disagree that when you look at the term
materially restricts, and again, it's a functional limitation.
I agree with Sam Bagenstos that there is a history of courts
applying that in functional ways.
When you look at it, it's helpful to think about it as a
condition, manner, or duration in which you perform that
activity as compared to the way most people perform that
activity, be it walking, thinking, concentrating, speaking, et
cetera. There is no confusion, Mr. Grossman, on the House
report on this. There was an effort in the House reports to
undo the fruit salad. There was an effort with regard to
learning disability to explain what Jo Anne Simon just said,
that when you decide whether someone with a learning disability
is materially restricted you don't look at the final outcome,
did they get A's? Maybe they did get A's, you look at whether
their manner, duration, or condition of performing the right
activity is different than that of most people, and that's what
you get from a medical diagnosis.
So it might be it looks a little too much like fruit salad
now, and I think it would be great if the Senate could undo
that, make more clear what are apples and what are oranges, but
I don't think there is a disagreement of understanding in terms
of what materially restricts is to mean.
Senator Harkin. Before I call on you Mr. Eastman, let me
read this. I am looking this over, and this is the final rule
on title II of ADA. It's interesting in the final rule, under
the substantial limitation of major life activity, they said
here that:
A person is considered an individual with a
disability for purposes of test A, the first prong,
when the individual's important life activities are
restricted as to the conditions, manner or duration
under which they can be performed in comparison to most
people.
You mentioned that. Most people or average person. Does
that give us some guidance?
Mr. Eastman.
Mr. Eastman. Thank you. First of all I think it does. I
agree with the prior witnesses on the condition, manner, or
duration language. That may be an appropriate clarification
that you may wish to consider. I would say more generally that
materially restricts language came about because the current
ADA does not provide any definition for ``substantially
limits.'' The EEOC in its regulations essentially said
substantially limits means significantly restricts.
Now the U.S. Supreme Court questioned whether those
regulations, whether the EEOC even had the ability to issue
those regulations, but it said substantially limits effectively
means severely restricts.
In a discussion over what words we use to describe
substantial limitation, we talked about a lot of words. We
tried to pick a word that made it clear we are not talking
about minor impairment and that on a scale of 1 to 10 might be
a 1. We are not talking about moderate that might be more in
the five range. But we are talking material. We are not talking
severe, or severity but it's still something more than
moderate.
That's where the word came about. We welcome the ability to
have a conversation about how we can further clarify it. And I
think the condition, manner, or duration language that has been
proposed here today would go a long way toward that.
Senator Harkin. Well, for example, referring back to the
final rule of title II, it says here, ``A person with a minor
impairment such as a simple infected finger is not a symptom
for major life activity.'' This goes on to say, ``a person who
can walk 10 miles continuously is not substantially limited in
walking merely because on the 11th mile he or she experiences
pain,'' because most people would not be able to walk 11 miles
without experiencing some discomfort,'' so again, the average
person, most people.
I must, for emphasis, repeat here again what they said in
this final rule on mitigating measures. I don't know how the
court got this wrong. I just for the life of me can't
understand this. We put it in our report on the Senate side. It
was in the House report, and here is the final rule that says
``the question of whether a person has a disability should be
assessed without regard to the availability of mitigating
measures such as reasonable modification or auxiliary aids and
services.''
``Personal hearing loss is substantially limited in the
major life activity of hearing even though the loss may be
improved through the use of a hearing aid. Likewise, persons
with impairments such as epilepsy or diabetes, which could
substantially limit a major life activity, are covered under
the first prong of the definition of disability, even if the
effects of the impairment are controlled by medication.''
I just don't know how the courts got that wrong. I don't.
Mr. Grossman.
Mr. Grossman. Thank you. With respect to the comments of
Ms. Simon as agreed to by Professor Feldblum, they bring up the
concept of common sense as a limiting factor. I think it's
important to note that with respect to the notion of
commonsense as a means of interpreting sort of the breadth and
the reach of the statute, I think it's important to note that
the House drafters avowed aim was to reduce judicial discretion
and try to pull out judge's applying their own common sense and
engrained wisdom where it differs from Congress'.
If Congress wishes to change the standard that is in the
statute it should do that in a way that is clear, that is
easily applied, and that provides appropriate guidance that may
be enhanced through findings such as are removed by the
Amendments Act. It may be enhanced by other parts of the
structure of the statute and it may be enhanced by more precise
language. That is what my greatest concern is, is that all of
these factors are lacking in the House's text.
Senator Harkin. Mr. Bagenstos.
Mr. Bagenstos. I think what this bill does is not the
common sense term but a common law term and there is a real
difference there. With a common sense term the idea is--let's
think about what it means to us. A common law term takes on a
history that goes back in this case--materiality, the term
material is used in blackstone, it is hundreds of years old in
the common law. It confines judicial discretion by using the
common law.
I think given the sense of the history that we have gotten
today, also the sense that it's material as a replacement for
substantial, because ``substantial'' is a term, and I talk
about this in my testimony, that everybody in the law
recognizes can mean two totally opposite things. It could mean
``he won the election by a substantial majority'' or it could
mean ``substantial evidence review under the Administrative
Procedure Act'' which means they have to have just the tiniest
bit of evidence to support them. ``Substantial'' as a term used
in the original ADA--very vague--did call on the courts
effectively to pour their own policy judgments in.
Material, not true. Material is a term that has been used
for generations and in this context it would be applied in a
way sensitive to this context but also bringing that meaning it
has for generations. So, I don't think it's common sense, it's
common law.
Senator Enzi. I'm trying to figure this out a little bit,
too. But I think what Mr. Hartle is talking about is the change
of adding, as a function, thinking and concentrating, whereas
before that wasn't as clearly defined as some of the other
physical activities.
How does the court construe the duty to accommodate in
those areas? We talked about disability, different people have
different abilities to think and concentrate. Some people need
different surroundings to be able to do that.
To what degree does the university have to provide that
kind of accommodation, that's the question I ask.
Ms. Feldblum. If I can respond to that directly. In fact,
the major life activities of thinking and concentrating have
been in the law for a significant amount of time. There are
cases that have recognized thinking, concentrating as major
life activities.
In fact, as Sue mentions in her testimony and also the
higher education folks, the Office of Civil Rights for the
Department of Education, when it issued guidance to the
schools, it specifically noted thinking and concentrating as
major life activities.
For years we have had thinking and concentrating as major
life activities that have been recognized both by the courts
and by the agencies. So, this bill is not going to change that
in terms of these being major life activities. There is a
difference here. As I understand their concern, in some
situations if colleges want to be able to say, ``In order for
you to get this degree, you need to meet certain requirements
that might in fact require you to think and concentrate in a
certain way or maybe even think and concentrate in a different
language.'' There seems to be a concern, I'm not exactly sure
why, but there seems to be a concern that schools will no
longer be able to have those eligibility requirements. That is
not true in terms of what the law does. So adding thinking and
concentrating to the major life activities does not affect the
requirements that a school can put in.
My only concern, by the way, as to putting something in
statutory language is because it would be really redundant of
existing law, I'm not sure what a court would do with it.
Certainly in legislative history, I have no problem at all
saying that has not at all changed. In fact, a court might
wonder why you put it in, but there would be no reason not to,
in terms of what this bill is intended to do.
Senator Enzi. They wonder about a lot of things we put in.
[Laughter.]
Senator Harkin. Is there anything else you want to bring up
before I prod a little further on something else? If there is
anything that you want to bring up for discussion?
Mr. Grossman. If I might, in response to Professor
Bagenstos--I apologize if I have mispronounced your name. In
response to his contention that materiality is a straight
forward concept of common law, I think it is a little bit
misleading and potentially incorrect to say that. The term has
been construed by the courts going back to other cases, and
there is no doubt about that. It is construed very differently,
however, in different context and I think that the case law is
very clear on that point.
The U.S. Supreme Court has actually, in the case Kungys v.
United States, actually put forward--this is Justice Scalia--
several paragraphs on explication of how it would arrive at a
construction of the word materiality in the context of a
criminal statute, and it was actually looking at different uses
of the word material in different areas of U.S. law, and
explicitly rejected pulling in dissimilar areas of the law to
construe the statute. I think it's also worth saying that the
U.S. Supreme Court, when it encounters this kind of ambiguity,
does resort to other methods such as looking things up in the
dictionary and I think like the word substantial, you wind up
in the dictionary definition of material which is sort of this
bifurcated definition.
Because, at least according to the same sort of
dictionaries that the U.S. Supreme Court commonly applies, you
wind up with several definitions that would seem to match
almost with severe, which the House legislation explicitly
rejects. On the other hand, you also see much lesser or much
looser standards that speak to you--pertinence that speak to
mere relevance. In other words, standards that seem, at least
according to the House's legislative history, much lower than
what the House is hoping to achieve in its draft language. If
Congress aims to expand coverage of the act, it should just do
so in a clear and straight forward way. It should use numbers,
it should use examples, it should use clear language. It
shouldn't replace one cipher with another.
Mr. Bagenstos. I think it would be very difficult to use
numbers or use examples that would really clarify things. We
have had a lot of efforts to try to do that and they all either
cover people we don't want to cover or don't cover people we do
want to cover. When you look at the Kungys case--I love this
because this is like a law school seminar, we could talk about
discussing cases. When you look at the Kungys case, what
Justice Scalia says as he goes through that long explication
is, here's the thing about materiality. When you try to create
a per se rule saying this is material and this isn't, it
doesn't work. What we have to do is apply it sensitive to the
context in which the term is being applied and sensitive to the
facts surrounding it which is really what the common law does
with very fact intensive questions like the question of what is
a disability. Unless what we are going to do is have a list in
the statute--amputation, epilepsy, intellectual developmental
disabilities, on down the line--these are disabilities and
there are very good reasons I think, why this Congress has
rejected that in the past, then we have to use a term that
takes account of context and that recognizes the fact intensive
nature of these decisions and the factual specificity of these
decisions. Using a term like ``substantial'' with no particular
common law meaning is a problem, using a common law term is a
good way of dealing with that.
Senator Harkin. Again, Mr. Grossman and Mr. Bagenstos, you
said in your written statement, as you have said here too, you
felt that the materiality was sufficient. But you said that if
the committee believes that additional elaboration on the
statutory text is necessary, one possibility readily suggests
itself--and you go on to basically use the same language that
was in the rule on title II. Would that suffice for you, the
same language that was used in the final rule on title II,
which says that conditions, manner, or duration in comparison
to most people or the average person?
Mr. Grossman. It's my view that it certainly would add a
lot of clarity to the legislation.
Senator Harkin. OK. I am trying to figure this out. It
seems there is a general consensus that we have to do more with
the term ``materially restricts.''
The other thing that we didn't really get to--and I see
that the vote has started--is the whole idea of broad
construction. On the broad construction aspect, is there
anything more that we need to say in terms of broad
construction other than what the House has said in this bill,
in terms of applying this broadly. Does that need to be more
specific or not?
Mr. Grossman.
Mr. Grossman. In other areas of the Federal statutory law
Congress has usually been much more specific when it encourages
courts to imply broad construction to the law. In other words
it will frequently say, the exact provisions will say something
along the lines of, ``broadly construed with respect to,'' and
then it will list specific ends, specific factors, specific
considerations. Those are things that are lacking from the
current HELP language, that again adds to the confusion about
the meaning of the law in this particular case.
Senator Harkin. Anything else on broadly construct?
Mr. Bagenstos. I think it is possible to write a broad
construction provision that is like the one that is written in
the Religious Land Use and Institutionalized Persons Act, which
is of the type that Mr. Grossman is talking about. I just want
to point out that actually in the statutes there are a number
of provisions. I cite a couple of them on page 4 of my prepared
testimony that say, and I am quoting: ``The provisions of this
section shall be liberally construed to effectuate its
purposes.''
It's perfectly consistent with statutory drafting practice
in the past, to have a provision like that in the ADA
Amendments Act. It is also consistent with what I took to be,
at the time the ADA was adopted, the background principles
construing Civil Rights Laws, which is to broadly construe them
to effectuate their purposes as Justice Stevens said in his
descent in the Sutton case. It is sensible to have the
provision that is currently in the bill and it is also quite
plausible to write a different kind of more focused provision.
Senator Harkin. As you said under the broad construction,
broad construction provisions does nothing more than declare
that in cases of ambiguity the plaintiff are entitled to have
their claims of discrimination heard on the merits. That brings
me back to Mr. McClure. A live person who basically never got
to have his case heard. Here is a person who, correct me if I
am wrong Mr. McClure, was hired to do a certain job and had
done this job for many years before. The GM doctor examined him
and found out through the examination that he couldn't raise
his arms above his head and therefore declared him to be
disabled, basically.
Well GM didn't hire him. He took it to court and the court
said, you are not disabled. So he never really got to get to
the merits of his case. So it seems to me that this is a
profound instance of where someone was carved out from the
first prong and was never allowed to ever be heard on the
merits of the case. Mr. McClure never, ever got to the merits
of the case.
That's why I point to this and say somehow this has to be
more broadly construed so that people can't just be carved out
without getting to that next step. So, it seems to me we have
to have this construct in this bill somehow. It's very
frustrating when people with epilepsy, amputation--and you
think of all the veterans coming back from Iraq who are going
to have a lot of prostheses and artificial limbs. They may be
able to function pretty well, but if they are discriminated
against, they will never have their case heard on the merits,
because they fall under here, what the U.S. Supreme Court has
now decided.
I think this is one of the essential elements of this bill
that we have to make sure we have it right. I am asking what
you thought about the construct of the bill itself. I am not
hearing anything opposite or--what I am hearing is that what's
in the bill is good, is acceptable.
Mr. Eastman.
Mr. Eastman. Thank you. I wanted to emphasize the point you
raised, Senator, which is a point that was helpful in
explaining to employers the House bill and why it might be
workable. Even though there is broad construction language and
even though parts of this bill when looked at alone appear to
be fairly broad, the fact of the matter is it's not universal
coverage, an employee will still need to be qualified for the
job in question, they would still need to prove their case on
the merits.
The employer could certainly articulate legitimate non-
discriminatory reasons for their actions, just like title VII.
Employers, we think, will still win the cases they should win--
the frivolous cases and non-meritorious cases on that basis.
Senator Harkin. Thank you, Mr. Eastman, and Ms. Gamm. We
are about half way through the vote and we have to close it up.
Ms. Gamm. I wanted to voice my dilemma. I wish I was smart
enough to know how to deal with it. The dilemma is this. You
look at what is a disability in all the various medical and
physical impairments, health impairments and you look at school
situations. Look at this huge number of kids now who somewhere,
somehow are getting diagnosed with ADHD, or allergies--now
there are schools that don't allow peanuts to deal with the
peanut allergy, for example--diabetes, obesity, the numbers are
growing. The issue becomes, those kids are in school, it's not
like they are getting a job or getting terminated, they have a
right to an education and the question becomes the means by
which they get access and are able to benefit. Our concern is,
under the current 504 regulation, there is very strict protocol
and processes including, thorough evaluations, etc., for any
child to determine if it rises to a level of disability and how
do we achieve that balance between informality and informal
planning which is now taking place and the higher threshold
under the current 504 regulation, that requires much more
precision and detailed direction, even though the results might
be the same.
Senator Harkin. Here's 504 right here.
Ms. Gamm. We are talking about the procedural regulation.
Senator Harkin. That's what I have up here.
Ms. Gamm. It's a procedural regulation in terms of how you
get to that point. I have it with me. If you want to look at
it. It's very detailed.
Senator Harkin. Ms. Simon, I'm a little confused myself
right now, but go ahead.
Ms. Simon. I think the issue is this, those procedural
requirements to the extent that they exist in the regulations,
are not going to be changed by this statute. The amendment to
the ADA is not going to change that at all.
I think the concern might be that there are students who
might be identified who currently are not identified, and the
question really is, whether they are protected from
discriminatory conduct, if they don't need services, they are
not going to be entitled to services. Whether they are
protected by the statute or not. I think that it's very
important that again we keep our eye on the ball with regard to
what it is we are trying to do here. We are trying to cover
those people who Congress originally intended to cover and who
have been denied those protections by the courts.
Senator Harkin. I would invite you to submit additional
testimony to us, elaborating on this and we will be looking at
this closely and taking everything into account. We really have
to go. I am going to miss my vote if I don't. I want to thank
all of you for being here and more importantly, I want to thank
you for your long-time involvement in the process. We will be
working on this legislation this month. Hopefully we will be
able to move this bill. I hope to get it done this year and
with your help, I think we can do that. So thank you all very
much.
We are adjourned, subject to the call of the Chair.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Obama
I want to thank the Chairman for holding this important
hearing regarding the proper scope of coverage of the Americans
with Disabilities Act. As many of you know, 54 million
Americans--roughly 1 in 6--personally experience some form of
disability. And the wars in Iraq and Afghanistan continue to
increase those numbers. Yet 17 years after Congress enacted the
Americans with Disabilities Act (ADA), Americans with
disabilities still do not have an equal opportunity to fulfill
the American Dream.
In 2006, working-age Americans with disabilities were
almost three times more likely to live below the poverty line
than those without disabilities. While the average annual
household income of individuals in the United States without
disabilities was $65,400 in 2006, the average annual household
income for people with disabilities was $36,300. And the
employment rate for persons with disabilities in 2006 was at
least 40 points lower than the employment rate of working-age
individuals without disabilities. These dismal statistics offer
evidence of severe shortcomings in our country's efforts to
break down the barriers that exclude people with disabilities
and deprive them of true equality of opportunity and
independence.
I believe the United States should lead the world in
empowering people with disabilities to take full advantage of
their talents so they can become independent, integrated
members of society. Dozens of countries have adopted laws
modeled on the Americans with Disabilities Act, but America's
leadership in the world has faded in recent years. Passage of
the Americans with Disabilities Restoration Act is an important
first step in restoring our Nation's leadership in this
important area. In recent years, the U.S. Supreme Court has
severely restricted the application of the Americans with
Disabilities Act (ADA) by narrowly defining what it means to
have a ``disability.'' As a result, lower courts have held that
people with epilepsy, diabetes, heart disease, and cancer can
be fired from their jobs because they have those conditions. As
a nation, that is something we should be ashamed of.
My good friend, Senator Tom Harkin, has long been a
national leader in the area of disability rights and I am proud
to support his legislation, which would overturn the U.S.
Supreme Court decisions that limit the ADA's coverage and
effectiveness. I urge my colleagues in the Senate to join this
bipartisan effort. I thank the Chairman for holding this
hearing, and I thank the witnesses for their time.
Prepared Statement Duke University
Duke University is strongly committed to protecting the civil
rights of people with disabilities. The University's Disability
Management System (DMS) provides leadership to the University and the
University Health System in their efforts to ensure an accessible,
hospitable working and learning environment for people with
disabilities while ensuring compliance with Federal and State
regulations.
The DMS serves as a central clearinghouse for disability-related
information, procedures and services. We provide expertise in the
development, implementation, and acquisition of standard disability-
related University practices, procedures, and resources, including but
not limited to:
Reasonable Accommodation Procedures (Students, Faculty,
Staff, Visitors)
Effective Communication
Assistive Technology/Adaptive Equipment
ADA Facilities and Site Surveys/Reviews
Disability Discrimination Grievance Procedure (in
collaboration with the Office for Institutional Equity)
At the outset, we express our sincere concerns about the ADA
Amendments which will add new definitions that are unclear and will
rely upon court decisions to reinterpret their meaning. For the
Nation's colleges and universities, we hope that the Congress will
ensure that however it chooses to amend this legislation, that it does
so in a manner that enables postsecondary institutions, serving
hundreds of thousands of students and staff with disabilities, to meet
their obligations in a sensible manner that does not require burdensome
analyses and engagement of high level consultants. To this end, we are
particularly concerned about redefining ``substantially limits'' as
``materially restricts,'' which, in our view, will again require
judicial interpretation.
It is clear from reviewing the House Committee Report that
Congress' primary concern with the act's implementation as interpreted
by the courts has been in the area of the employment of persons with
disabilities. We believe that if the primary concern is in the
employment area, then Congressional revisions to the act should address
the perceived inequities in that area alone.
We have reviewed the Senate Committee Roundtable discussion of July
15, 2008 and offer these additional comments. First, we do not agree
that Duke University, let alone the vast numbers of colleges and
universities, denies accommodations to students with disabilities, such
as individuals with cerebral palsy, epilepsy and diabetes, as suggested
at the Roundtable. Rather, Duke University, in keeping with
pronouncements made by the courts and OCR, has always made decisions on
an individualized basis and we assume that Congress would want
postsecondary institutions to continue to do so.
We recommend that the Congress amend the proposed language to
ensure that short-term conditions, which have not or are not expected
to last more than 6 months, are not disabling for purposes of
accommodation. The current proposed language only makes that clear for
the ``regarded as'' prong and we see no basis for extending legal
protections to individuals with short-term illnesses or conditions.
There is an unfortunate misuse of assessments in the clinical field
today. Our learning disability specialist can see up to 150 different
types of assessments to document a learning disability. We note that
certain clinicians, with a design to document a learning disability,
will use certain subtests in a manner designed to elicit a particular
response. The quality of many of these assessments is quite poor, and
sadly, in some instances, is obviously designed to mislead the campus.
We encourage the Congress to review the court decision in Love v. LSAC,
513 F.Supp.2d 206 (E.D. Penn. 2007) to appreciate the unfortunate
reality of what may occur when students with no or minor impairments
attempt to garner an unfair advantage over other students by
manipulating our civil rights laws. We cannot envision that the
Congress would seek to cloak such deception/misuse in civil rights
protections. Unfortunately, should Congress weaken the documentation
requirements, we anticipate a significant rise in the number of
requests for accommodation sought by individuals with minor or no
impairments.
Covering all individuals with impairments, regardless of the
limitations imposed by such impairments, would have a significant
impact on postsecondary institutions. Colleges and universities would
be required to process many more requests, not merely for classroom
accommodations but also in housing where we receive many, many requests
for what we have historically viewed as health conditions which are in
most cases not disabling. We anticipate that the addition of major
bodily functions to the definition of major life activities, regardless
of severity or mitigation, will significantly expand requests for
accessible housing beyond management.
What is the purpose of an accommodation? We have always interpreted
the Federal disability laws in a manner that promotes equal opportunity
to the goods and services that our institution provides nondisabled
students, visitors and employees. Frankly, we are at a loss to
understand when a person who has no current disabling condition could
ever warrant an accommodation because there would seem to be no basis
to support such a need if there are no current functional limitations
associated with a past disorder.
If Congress significantly expands the roles of who qualifies as
disabled by increasing the major life activities in nine ways, removing
consideration of mitigating measures (other than use of eye glasses and
contact lenses), and modifies ``substantially limits'' to a lesser
standard, such as ``materially restricts'' we are concerned that every
student who has ever had a 504 plan or IEP, regardless of even the
existence of a current impairment, would qualify for accommodations
under the ADA/Rehabilitation Act. We find no support in anything that
we have reviewed that has been presented to Congress to justify such a
significant expansion. On the other hand, if Congress believes that
colleges and universities have discriminated against students with a
record of a disorder, we believe that the current provisions adequately
address those concerns, which we support. Consequently, we respectfully
see no need to alter the U.S. Department of Education's long-standing
policy in this regard.
In a similar vein, we do not understand why Congress would want to
expand the obligation to provide accommodations to students who have
conditions that are in remission. Our practice has consistently been to
advise students that if their condition changes and they believe they
need some form of accommodation merely to update the university on the
status of their condition and we will reconsider their request. But we
stress, as we believe holds true for the majority of institutions of
higher education, our campus extends support to all patrons, be they
employees, visitors, parents, alumni and current students who seek
assistance, regardless of the existence of a disabling condition.
However, as a selective institution, we are concerned that some
students may use these amendments (designed to extend the right to
accommodation to individuals with little or no functional limitations
associated with a current or past disorder) to effectuate an unfair
advantage over other students, and, as noted above, to request housing
accommodations that will be very costly and limit the availability of
accessible housing for those who have serious disabling conditions.
We understand that in 2004, concerned with the significant number
of students qualifying as disabled under the Individuals with
Disabilities Education Act, Congress amended that act to encourage
school systems to use interventions with students experiencing academic
difficulties before evaluating them. We are surprised that Congress
would now propose legislation that would seemingly result in these
students being considered disabled under the ADA as they are using
mitigating measures by the school's employment of response to
intervention techniques. Again, is it Congress' intent to consider all
of these students to be disabled under the ADA and Rehabilitation Act
and then entitled to accommodations in postsecondary education?
We express our concern about the elimination of mitigating measures
from the analysis of who qualifies as having a current disabling
condition. We frankly can think of no student who has ever had any
impairment other than a short-term illness or injury, that is not
episodic, who would NOT qualify for accommodations. Every student who
has been on an IEP or a 504 plan has received mitigating measures--by
definition. We speak with lengthy experience formed by our own
disability experts as well as consultants we use to assist us in this
area as to the difficulty in making decisions based on self-reporting.
As an example, many of our students, with or without impairments, have
studied long hours in order to gain admission to this university--
studying long hours could qualify as a behavioral adaptation for any
impairment. Many students have purchased tutorial assistance, again a
mitigating measure, to assist them in their educational careers. If
these students have any impairment that they link with their tutorial
assistance, we are concerned that these students would also qualify for
accommodations.
Finally, as the Congress understands, the number of students with
an array of mental health problems is increasing on our campuses. We,
like many other institutions, afford counseling services and other
supports to assist students. We have consistently provided
accommodations to those students with chronic serious mental health
conditions whose conditions are not well-controlled with medication
and/or treatment. We express our sincere concerns that if the ADA
Amendments as currently written are adopted, that virtually any student
experiencing anxiety or depression, no matter how severe, that extends
for more than a short period of time, even if episodic, would be
eligible for accommodations. The proposed Amendments will render most
students served by our Counseling and Psychological Services office as
members of a protected class. Again, given the breadth of the proposed
expansion of the definition of who is considered to be a person with a
disability, we believe that Congress may not have appreciated how the
proposed Amendments would significantly expand the number of affected
students whose conditions are not chronic, do not pose significant
limitations and/or are treatable.
In conclusion, we appreciate that the Congress is concerned about
how the courts have interpreted the ADA in the employment sector. Our
review of the testimony at the hearings appears largely about when an
employer has refused to permit an employee to use mitigating measures
that would permit him/her to perform a job. We have no objection to
Congress enacting legislation to curb that ill. Similarly, we have no
objection to Congress ensuring that the ``regarded as'' prong protects
individuals who suffer adverse consequences as a result of the negative
attitudes and/or misperceptions about an actual or perceived disorder.
The University's primary concern is Congress' effort to expand the
right to receive accommodations to significant numbers of students with
minor or no current impairments. We truly believe that in the end, this
will work a disservice to students with serious impairments with
accompanying functional limitations. Thank you for considering our
comments.
Questions regarding this statement should be directed to:
Christopher Simmons, Associate Vice President, Office of Federal
Relations, Duke University, Durham, North Carolina 919-668-6270.
[Whereupon, at 11:48 a.m., the hearing was adjourned.]