ADA Amendments Act of 2008

Floor Speech

ADA AMENDMENTS ACT OF 2008 -- (House of Representatives - September 17, 2008)

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Mr. HOYER. I thank the chairman for his remarks. And I thank Mr. McKeon for his leadership and willingness to work together on a difficult issue.

I certainly want to acknowledge and thank my friend Jim Sensenbrenner, Congressman Sensenbrenner, who has been chairman of the committee, the Judiciary Committee, who has been a leader in this Congress, and his wife, Cheryl. Cheryl, like the young man we just saw speak, Congressman Jim Langevin, has shown great courage, but also has shown that disability is not disabling; that we ought to look at the ability people have, what they can do, not what they can't do. All of us can't do certain things. I urge people to look at what people can do. And that's what this bill was about in 1990. That's what this bill is about today.

And I am very pleased to be here to speak on behalf of this bill. I think this bill may well pass unanimously, and the public might conclude, therefore, that this was not contentious and difficult, it was both--not contentious in terms of enabling those with disabilities to be fully included in our society, but how to do that; how to do that in the context of making sure that the business community could live with this, that the disabilities community could live with this, and that we did, in fact, accomplish the objectives that we intended.

I want to thank as well the Chamber of Commerce, the National Association of Manufacturers and other business groups who came together with the disabilities community with a common objective. Randy Johnson worked on behalf of the Chamber of Commerce. And Randy Johnson, at a press conference that was held when the Senate passed this bill just a few days ago, said that he was a staffer here in 1988 and '89 and '90 when we passed the Americans with Disabilities Act. And he made the observation that--he sat on the floor, he worked with the leadership on the Republican side and the Democratic side, worked particularly with my friend, Steve Bartlett, Congressman Steve Bartlett from Texas, who was intimately involved in fashioning and working out the compromises necessary to overwhelmingly pass the ADA in 1990. And he said it was clear then that the intent of Congress had been misconstrued by the Supreme Court--this is Randy Johnson, Republican staffer, leader now in the Chamber of Commerce of the United States who helped fashion this bill. And this bill really says, yes, we agree with that in a bipartisan way. The Supreme Court misinterpreted what our intent was. And our intent was to be inclusive.

Civil rights bills are intended to be interpreted broadly. Why? Because we want to make sure that every American has the benefits that America has to offer, the opportunities that America has to offer, and to empower them to help America be a better country, to bring their talents and their skills and their motivation to bear in the public and private sectors.

I want to thank as well Nancy Zirkin, Andy Imperato, my--as I call him my lawyer, Chai Feldblum, who has worked so hard on this for now 20-plus years. It's been 18 years since we passed the ADA, but as Mr. Miller knows, it's been 20-plus years--25 years really--that we've been working on getting to this point.

I also want to thank Mike Peterson of H.R. Policy and Jerry Gillespie of the National Association of Manufacturers.

There are so many people that I could spend the next 5 or 10 minutes mentioning just name after name after name who made this happen. I won't do that, not to diminish them in any way, but to say that this is the result of the efforts of many--not of me, but of many; not of Mr. Miller alone or the ranking member alone or Mr. Sensenbrenner, but many dedicated to this cause.

We are here to build on the accomplishments of the landmark Disabilities Act of 1990. We wouldn't be here at all, however, without the hard work, frankly, of a very close friend of mine, former Member of Congress, Tony Coelho. Tony Coelho had a vision. Tony Coelho suffers from epilepsy. There is nobody who knows Tony Coelho that thinks he is not able to do anything, everything, and all things. Tony Coelho empowered all of us to think larger, to understand how to bring about real change for those with disabilities.

Tony Coelho, an epileptic, was asked to leave the seminary because he had epilepsy because the church concluded he really couldn't do the job. It was the church's loss and our gain. He made a tremendous contribution to this institution. But much more importantly, in the last some 20 years that he has not been a Member of this institution he continued to make an extraordinary contribution, not just to those with disabilities, but to our society, in expanding our consciousness and inclusion.

And I mention his name, but I also want to thank my friend, Steve Bartlett. Steve Bartlett, Congressman, then the Mayor of Dallas, now in the private sector, but engaged in the eighties and nineties and engaged in the passage of this bill today, was extraordinarily helpful to us. In 1990, the original ADA was the product of the vision of so many.

I also want to thank my former staffer, Melissa Schulman, who worked indefatigably as we passed the ADA in 1990.

When the first President Bush signed the Americans with Disabilities Act 18 years ago, America became the world's leader on this central test of human rights. The ADA was a project in keeping with our oldest principles and founding ideals. As President Bush the first, as I call him, put it at the signing ceremony, and I quote, ``Today's legislation,'' he said, ``brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty and the pursuit of happiness.''

Thanks to the ADA, that day became closer on July 26, 1990. Thanks to the passage of this bill today and the signatures Mr. Miller indicated next week, and the expected signatures of the President, with hopefully the first President Bush present, tens of millions of Americans with disabilities will now enjoy even fuller rights, and the rights that we intended them to enjoy when we passed the ADA--the right to use the same streets, theaters, restrooms or offices, the right to prove themselves in the workplace, to succeed on their talent and drive alone.

We've accomplished much in terms of public accommodations, in terms of reasonable accommodations. I was sitting there with Michele Stockwell, my policy director, as we watched Jim Langevin give his speech. What a wonderful accommodation he has in that chair that stands up. Weren't all of you impressed when he said, ``I rise to support this legislation?'' ``I rise.'' And he does rise. Why? Because he has a reasonable accommodation which, notwithstanding the failure of his legs to work the way he would like them to work, his chair reasonably accommodates and has him rise to speak to this body as a testimony to the consciousness of having been raised to make sure that a person like Jim Langevin--of great ability, of great ability, not disability, but of great ability--can come here, having been shot at the age of 16 inadvertently, by accident, disabled, graduated from high school, graduated from college, elected to the Rhode Island House, elected to Secretary of State of his State, and now a Member of this body. What a testimony to making sure that we made sure Jim Langevin could get through the door; we made sure JIM LANGEVIN could get the kind of education he wanted and have access to that education. What a testimony to what this Congress has done, but more importantly, what so many courageous people with a disability have shown us all, that a disability is not disabling. It may rob us of a single or maybe even multiple ways that some people do things, but not of all things.

Sadly, as a result of the Supreme Court's decision, we have yet to live up to our promise fully. That's what we're trying to do today. We've made progress on access, we've made progress on listening devices, a lot of progress. One of the places we haven't made the progress we wanted to was employment. So many people want to work, want to be self-sufficient, want to be enterprising, want to have the self-respect of earning their own way, but have been shut out. And the Supreme Court didn't help us. That's what this bill is about.

Over the last 18 years, the Court has chipped away at that promise and at Congress' clear original intent. We said we wanted broad coverage for people with disabilities and people regarded as disabled. Important phrase, ``regarded as disabled.'' What the Supreme Court really said, well, if you can make sure that your disability does not disable you. Tony Coelho takes medicine for his epilepsy, and so he functions. And if you saw him, you would say he's functioning fine. But if I said, but I won't hire you, Tony, because you have epilepsy, the Court said that was okay. Nobody on this floor believed that was the case. If he was discriminated against because he had a disability but could do the job, we said that's wrong. The Court did not agree with us, and we're now changing that and making sure that our intent will be lived out.

We never expected that the people with disabilities who work to mitigate their conditions would have their efforts held against them, but the courts did exactly that. Those narrow rulings, which will be changed by this legislation, have closed the door of opportunity for millions of Americans. We're here today to bring those millions of our fellow citizens back to where they belong--where we want them, where we need them, under the protection of the ADA.

By voting for final passage of the ADA Amendment Act, we ensure that the definition of disability will henceforth be construed broadly and fairly. We make it clear that those who manage to mitigate their disabilities can still be subject to discrimination; we know that intuitively and practically. This legislation says we know it legislatively. And we recognize that those regarded as having a disability are equally at risk and deserve to be equally protected.

This bill, which was approved by the Senate last week unanimously, has come so close to a signature thanks to the tireless work of the members of the disability community, leaders from both parties and business groups, a coalition as broad and deep as the one that created the original ADA.

I want to recognize the cosponsor of this bill, as I said earlier, JIM SENSENBRENNER, tireless in his advocacy, and his wife, Cheryl. I want to thank my good friend Tony Coelho. As I said at a press conference last week, I have served in the Congress for 28 years. There will be a time when I will retire. And I will look back on my career. And one of the proudest achievements I will have is the work that I have done at Tony's insistence and request on behalf of the Americans with Disabilities Act and those who are challenged by being shut out of our society.

Finally, it is my honor to dedicate this bill to a pioneering disability advocate and an inspiration behind the ADA. He is listening to us. He died some years ago. His name was Justin Dart. Justin Dart, like JIM LANGEVIN, was in a wheelchair. It didn't disable him. Indeed, it empowered him. It empowered him to educate all of us. It empowered him to educate those with disabilities as to what they could do and accomplish by their efforts to join together, to educate us and to educate the country. His bride, Yoshiko Dart, carries on that torch.

When Justin Dart spoke last that I heard him at the White House, he said I may not be with you for a long time. But I want you to keep on keeping on. Justin, that is what we do today.

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Mr. HOYER. Madam Speaker, Mr. SENSENBRENNER and I submit the following regarding S. 3406:

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For over a decade, courts have narrowed the scope of the ADA and have thereby excluded many individuals whom Congress intended to cover under the law. The unfortunate impact of too narrow an interpretation has been to erode the promise of the ADA.

With the passage of the ADA Amendments Act (ADAAA) today, we ensure that the ADA's promise for people with disabilities will be finally fulfilled. Our expectation is that this law will afford people with disabilities the freedom to participate in our community, free from discrimination and its segregating effects, that we sought to achieve with the original ADA.

The House of Representatives passed the ADA Amendments Act, H.R. 3195, on June 25, 2008, by an overwhelming vote of 402-17. The purpose of this legislation was to restore the intent of Congress to cover a broad group of individuals with disabilities under the ADA and to eliminate the problem of courts focusing too heavily on whether individuals were covered by the law rather than on whether discrimination occurred.

That commitment has now been echoed by passage in the Senate of the ADA Amendments Act, S. 3406, by unanimous consent. We welcome the opportunity to pass today the version of the ADA Amendments Act passed by the Senate, here in the chamber where it began its journey on July 26th, 2007.

We are particularly pleased with the alliance of business and disability representatives who came together to work with us on this bill and support its passage throughout both houses of Congress. Last January, we personally encouraged these groups to work together to reach an agreement that would work well for both people with disabilities and for entities covered under the law. We are pleased that they have been able to do so throughout this bill's legislative process.

H.R. 3195, the ADA Amendments Act passed by the House, and S. 3406, the ADA Amendments Act passed by the Senate, are identical in most important respects.

Both H.R. 3195 and S. 3406 contain identical language concerning mitigating measures, episodic conditions, major life activities including major bodily functions, treatment of claims under the ``regarded as'' prong, ensuring regulatory authority over the definition of disability, and conforming Section 504 of the Rehabilitation Act to be consistent with the changes made by the ADAAA.

Hence, the Report of the House Committee on Education and Labor and the Report of the House Committee on the Judiciary, as well as our Joint Statement introduced into the CONGRESSIONAL RECORD on June 25, 2008, continue to accurately convey our intent with regard to the bill we are passing today.

While the intent is the same, as discussed more fully below, S. 3406 takes a slightly different approach than H.R. 3195. Consequently, we want to make it clear that where the House Committee Reports and our joint statement used the term ``materially restricts'' to establish points in various examples, those examples should be read to convey the same points, and the term ``materially restricts'' should be understood to refer to the less demanding standard for the term ``substantially limits'' prescribed by both H.R. 3195 and S. 3406. For example, the statement in the House Education and Labor Report that ``the Committee expects that a plaintiff such as Littleton could provide evidence of material restriction in the major life activities of thinking, learning, communicating and interacting with others'' should be understood to mean that the Committee expects that a plaintiff such as Littleton could provide evidence of substantial limitation in thinking, communicating and interacting with others. (See Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874 (11th Cir. 2007)).

The key difference between the two bills is that S. 3406 uses a different means to achieve the same goal that we achieved with H.R. 3195. As we explain below, we are comfortable accepting this approach.

In H.R. 3195, we achieved this goal by redefining the term ``substantially limits'' to mean ``materially restricts'' in order to indicate to the courts that they had incorrectly interpreted the term ``substantially limits'' in Toyota Motor Mfg. of Kentucky, Inc. v. Williams, and to convey to the courts our expectation that they would apply a less demanding standard of severity than had been applied by the Supreme Court.

Our colleagues in the Senate, however, were uncomfortable with creating a new term in the statute. Hence, they achieved the same goal through a different means.

Instead of redefining the term ``substantially limits,'' S. 3406 states that such term ``shall be interpreted consistently with the findings and purposes'' of the ADA Amendments Act. This is a textual provision that will legally guide the agencies and courts in properly interpreting the term ``substantially limits.'' With regard to the findings and purposes that the textual provision requires the agencies and court to use, S. 3406 incorporates all of the findings and purposes of H.R. 3195, including statements that Congress intended for the ADA to provide broad coverage and that this legislation rejects the Supreme Court's decisions in Sutton and Williams that inappropriately narrowed the scope of protection of the ADA.

In order to explain how it intended the definition of ``substantially limits'' to be interpreted, the Senate added findings which highlighted the fact that the Williams decision placed a too high threshold on the definition of substantially limits and that the EEOC's interpretative regulations were similarly drafted or interpreted to create a burden not contemplated by the Congress. Consistent with these findings, the Senate added two purposes which directed the EEOC to amend its regulations to reflect the purposes of the ADA as amended by the ADAAA and which noted that the thrust of ADA inquiry should be directed to the compliance obligations of the covered entities rather than the scope of the disability experienced by the individual asserting coverage under the Act.

While we believe that the approach we adopted in H.R. 3195 would have been workable for the courts--i.e., providing a new definition of ``substantially limits'' in order to convey to courts our intention that they should apply a lower standard of severity than they previously had--we accept the considered judgment of our colleagues in the Senate that their approach achieves the same end, but in a manner more suitable to their interests.

S. 3406 also modifies the rule of construction that we had placed in H.R. 3195. Under the Senate's construction, the definition of disability ``shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.'' We understand that this provision will have the same meaning as the rule of construction that we had included in H.R. 3195, but with a clarification that the courts may not interpret the definition of disability in a manner inconsistent with the terms of the ADA. That, of course, is true.

In addition, the changes made by S. 3406 will send an important signal to the courts. We expect that courts interpreting the ADA after these amendments are enacted will not demand such an extensive analysis over whether a person's physical or mental impairment constitutes a disability. Our goal throughout this process has been to simplify that analysis.

With the passage of the ADA Amendments Act today, we finally fulfill our promise to tear down the barriers of ignorance and misinterpretation that make up an unpardonable ``wall of exclusion'' against people with disabilities. See George H. W. Bush, Remarks on Signing the Americans with Disabilities Act of 1990 (July 26, 1990).

We are grateful to the individuals and advocates who have worked tirelessly to ensure the civil rights and inclusion of people with disabilities in every aspect of life. This includes work during various stages of the bill to bring it to a successful conclusion.

A large group of individuals worked closely with us as we developed the second ADA Restoration Act that was introduced on July 26, 2007:

Tony Coelho, Immediate Past Board Chair of the Epilepsy Foundation and Former U.S. Representative; Cheryl Sensenbrenner, Board Chair of the American Association of People with Disabilities (AAPD); Andy Imparato, AAPD; Sandy Finucane, Epilepsy Foundation and her lawyers at the Georgetown Federal Legislation and Administrative Clinic: Heather Sawyer, Kevin Barry and Chai Feldblum; Jennifer Mathis, Bazelon Center for Mental Health Law; Abby Bownas and Shereen Arent, American Diabetes Association (ADA); Curt Decker and Ken Shiotani, National Disability Rights Network (NDRN); Arlene Mayerson and Marilyn Golden, Disability Rights Education and Defense Fund (DREDF); Claudia Center, Legal Aid Society of CA; Janna Starr, Paul Marchand and Erika Hagensen of The Arc/UCP Public Policy Collaboration; Denise Rozell, Easter Seals; Lee Page, Paralyzed Veterans Association; Bobby Silverstein, Center for the Study and Advancement of Disability Policy, and John Lancaster, National Council on Independent Living (NCIL).

In January 2008, we urged representatives from both communities to sit down with each other and to understand each other's needs and concerns. We appreciate the leadership role displayed in these conversations by the following individuals on behalf of the disability community: Sandy Finucane, Epilepsy Foundation; Professor Chai Feldblum, Georgetown Law; Andy Imparato, AAPD; Jennifer Mathis, Bazelon Center for Mental Health Law; Curt Decker, NDRN; John Lancaster, NCIL.

We appreciate the leadership role displayed in these conversations by the following individuals on behalf of the business community: Randy Johnson and Michael Eastman, U.S. Chamber of Commerce; Mike Peterson, HR Policy Association; Jeri Gillespie, National Association of Manufacturers; Mike Aitken and Mike Layman, Society for Human Resource Management.

We appreciate the intensive work done by the core legal team in these discussions, led by Professor Chai Feldblum and Jennifer Mathis for the disability negotiators, ably assisted by Kevin Barry, Jim Flug, John Muller and Emily Benfer, and led by Mike Eastman, Lawrence Lorber, Proskauer Rose, LLP, and Mike Peterson. We know that this group greatly appreciated the wise counsel of lawyers from each of their respective communities as they went through this process, including Camille A. Olson, Seyfarth Shaw; HR Policy Association's Employment Rights Committee, chaired by Susan Lueger of Northwestern Mutual; Kevin McGuiness; and David Fram, who provided wise counsel for the business community and Professor Sam Bagenstos; Brian East, Advocacy, Inc.; Claudia Center, Legal Aid of CA; Shereen Arent, ADA, Arlene Mayerson, DREDF and JoAnne Simon, who provided wise counsel for the disability community.

We benefited greatly from the fact that former colleagues in both Congress and the Administration lent their support to this effort, including former U.S. Representative Steve Bartlett, former U.S. Representative Tony Coelho, former Senator Robert Dole, and former Attorney General Richard Thornburgh.

We appreciate the personal leadership role taken by Nancy Zirkin and Lisa Bornstein of the Leadership Conference in Civil Rights in making this a priority for the civil rights community.

Finally, at the risk of leaving out some individuals, we want to recognize some of the additional countless individuals who helped with educating Members of Congress, doing important coalition and media work, and providing legal input on the bill as it progressed through Congress, from its first stages through the final vote today: Anne Sommers, AAPD; Angela Ostrom, Donna Meltzer, Hans Friedhoff, Ken Lowenberg, Kimberli Meadows, and Lisa Boylan, Epilepsy Foundation; Day Al Mohamed, American Psychological Association; Deb Cotter, NCIL; Joan Magagna and Ron Hager, NDRN; Mistique Cano, Maggie Kao and Robyn Kurland, Leadership Conference for Civil Rights; Peggy Hathaway and Jim Wiseman, United Spinal Association; Annie Acosta, The Arc/UCP Disability Policy Collaboration; Lewis Bossing, Bazelon Center for Mental Health Law; John Kemp, U.S. International Council on Disabilities; Bebe Anderson, Lambda Legal Defense Fund; Robert Burgdorf, UDC law professor; Rosaline Crawford, National Association of the Deaf (NAD); Mark Richert, American Foundation for the Blind; Eric Bridges, American Council for the Blind; Jessica Butler, Council of Parent Attorneys and Advocates; Michael Collins, Julie Carroll and Jeff Rosen, NCD; Steve Bennett, UCP, Lise Hamlin, Hard of Hearing Association of America; Laura Kaloi, National Center for Learning Disabilities; Donna Lenhoff and Gary Phelan, National Employment Lawyers Association (NELA); Darrin Brown and Evelyn Morton, AARP; Dan Kohrman, AARP Foundation and NELA; Katy Beh Neas, Easter Seals; Andrew Sperling, National Alliance on Mental Illness; Toby Olson, Washington State Governor's Committee on Disability Issues and Employment; Myrna Mandlawitz, Learning Disabilities Association; Ari Ne'eman, Autistic Self Advocacy Network; Shawn O'Neail, National Multiple Sclerosis Society; Laura Owens; APSE: The Network on Employment; Cindy Smith, CHADD; Jim Ward, ADA Watch/National Council on Disability Rights; Nathan Vafaie, National Health Council; David Webbert, Johnson & Webbert; Joanne Lin, Michelle Richardson, and Deborah Vagins, ACLU Washington Legislative Office; Lynne Landsberg and Kate Bigam, Religious Action Center of Reform Judaism, Amy Rosen, United Jewish Communities; Elissa Froman, National Council of Jewish Women; Jayne Mardock, National Kidney Foundation; Jack Clark and Mark Freedman, U.S. Chamber of Commerce; Tim Bartl, HR Policy Association; Recardo Gibson, SHRM; Bo Bryant, McDonald's; Keith Smith, Ryan Modlin and Bob Shepler, National Association of Manufacturers; Ty Kelley, Food Marketing Institute; and Jason Straczewski, International Franchise Association.

Regardless of the work done by advocates, however, it is ultimately we in Congress who must get the job done. We applaud the commitment of Congressman George Miller, Chair, and Congressman Buck McKeon, Ranking Member, Committee on Education and Labor; Congressman John Conyers, Chair, and Congressman Lamar Smith, Ranking Member, Committee on Judiciary; Congressman Jerry Nadler, Chair, and Congressman Trent Franks, Ranking Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties; Congressman John Dingell, Chair, and Congressman Joe

Barton, Ranking Member, Committee on Energy and Commerce; Congressman James Oberstar, Chair, and Congressman John Mica, Ranking Member, Committee on Transportation and Infrastructure for bringing this bill successfully through their committees. We applaud our 400 colleagues who voted with us to pass the ADA Amendments Act this past June and we applaud the Senate that unanimously passed the ADA Amendments Act last week.

And, of course, there is no way we could have done all the work that we did on this bill without the dedicated assistance of our staff and the staff of the committees. So, we would particularly like to thank Michele Stockwell, Keith Abouchar, Michael Lenn, Sharon Lewis, Heather Sawyer, Mark Zuckerman, Jim Paretti, Ed Gilroy, Brian Kennedy, Paul Taylor, David Lachmann, Alex, Nock, Thomas Webb, Jody Calemine, Tico Almeida, Chris Brown, and Ken Serafin.

What really matters, when all is said and done, is the work done by people with disabilities every day across this great nation. The passage of the ADA Amendments Act today is intended to ensure that they receive the simple, basic opportunity to participate fully in all aspects of society. We are grateful to have played a role in helping to make that happen.

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