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What's New At DRS - Rehabilitation Issues Update

Legislative Update
July 30, 2007

On July 26th, the 17th anniversary of the 1990 Americans with Disabilities Act (ADA), members of both the U.S. House and Senate took action to restore the intent and protections of the ADA, in response to court decisions which have reduced the coverage and scope of ADA protections against discrimination based on disability.

The House bill is H.R. 3195 by Rep. Steny Hoyer (D-MD) and Rep. James Sensenbrenner (R-WI). As introduced, H.R. 3195 had 144 cosponsors. No Oklahoma members of Congress were among initial cosponsors of the bill, but members can request their names be added at any time. H.R. 3195 was assigned to several House committees as follows:

These are all committees which deal with areas affected by the ADA.

The Senate bill is S. 1881 by Sen. Tom Harkin (D-IA) and Sen. Arlen Specter (R-PA). S. 1881 is assigned to the Senate committee on Health, Education, Labor and Pensions (HELP).

Following are remarks of Sen. Harkin on introducing the ADA Restoration Act:

“Mr. President [addressing the presiding officer of the Senate], I am joining, today, with the senior Senator from Pennsylvania, Senator Specter, in introducing the ADA Restoration Act of 2007.

Today, July 26, marks the 17th anniversary of the signing of the Americans with Disabilities Act, one of the landmark civil rights laws of the 20th century, and a long-overdue emancipation proclamation for the 50 million Americans with disabilities.

As chief sponsor of the ADA in the Senate, I take pride in the progress we have made as a Nation since 1990. We have removed most physical barriers to movement and access for the 50 million Americans with disabilities. We have required employers to provide reasonable accommodations so that people with disabilities can have equal opportunity in the workplace. We have advanced the 4 goals of the ADA, equality of opportunity, full participation, independent living, and economic self-sufficiency.

So today is a day, first and foremost, to celebrate all that has been accomplished over the last 17 years.

But despite that progress, there is a problem. In recent years, the courts have ignored Congress's clear intent as to who should be protected under the ADA. And the courts have narrowed the definition of who qualifies as an “individual with a disability.'' As a consequence, millions of people we intended to be protected under the ADA, including people with epilepsy, diabetes, and cancer, are not protected any more. In a ruling just this spring, the 11th Circuit court even concluded that a person with mental retardation was not “disabled'' under the ADA.

Looking back through the legislative history, it is abundantly clear that Congress intended that the protections in the ADA apply to all persons without regard to mitigating circumstances, such as taking medication or using an assistive device.

In the Senate Labor and Human Resources Committee report Congress said:
‘Whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids.’

The House Education and Labor Committee report says the same thing, and goes on to say:
‘For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. Likewise, persons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the definition of disability, even if the effects of the impairment are controlled by medication.’

Nonetheless, in a series of cases, the Supreme Court ignored Congressional intent. Together, these Supreme Court cases have created an absurd and unintended Catch 22. People with serious health conditions like epilepsy or diabetes who are fortunate to find treatments that make them more capable and independent, and more able to work, may find that they are no longer protected by the ADA. If these individuals are no longer covered under the ADA, then their requests for a reasonable accommodation at work can be denied, or they can be fired. On the other hand, if they stop taking their medication, they will be considered a person with a disability under the ADA, but they will be unable to do their job.

This is not just absurd, it is wrong. It flies in the face of clear, unambiguous Congressional intent. When we passed the law, there was common agreement on both sides of the aisle, and on the part of the White House, that the law was designed to protect any individual who is treated less favorably because of a current, past, or perceived disability.

This situation cries out for a modest, reasonable legislative fix, and that is exactly what we are doing, today, by introducing the ADA Restoration Act of 2007.

Our bill amends the definition of ``disability'' so that people who Congress originally intended to be protected from discrimination are covered under the ADA.

Mr. President, 17 years ago, the Americans with Disabilities Act passed with overwhelming bipartisan support. Likewise, today, we are building a strong bicameral, bipartisan majority to support ADA Restoration. A companion bill is being introduced, today, in the House.

As with the original passage of the ADA in 1990, it is going to take time to hold hearings and build strong majorities. But I look forward to working to restore Congress' original intent, and, once again, to ensure that Americans with disabilities are protected from discrimination.”

The full text of these bills will be available shortly online. For a copy of the Senate bill as printed in the Congressional Record on introduction, contact Jean Jones, jhjones@drs.state.ok.us.