S. 1881 (110th): Americans with Disabilities Act Restoration Act of 2007

110th Congress, 2007–2009. Text as of Jul 26, 2007 (Introduced).

Status & Summary | PDF | Source: GPO

II

110th CONGRESS

1st Session

S. 1881

IN THE SENATE OF THE UNITED STATES

July 26, 2007

(for himself and Mr. Specter) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To amend the Americans with Disabilities Act of 1990 to restore the intent and protections of that Act, and for other purposes.

1.

Short title

This Act may be cited as the Americans with Disabilities Act Restoration Act of 2007.

2.

Findings and purposes

(a)

Findings

Congress finds that—

(1)

in enacting the Americans with Disabilities Act of 1990, Congress intended that the Act establish a clear and comprehensive prohibition of discrimination on the basis of disability, and provide broad coverage and vigorous and effective remedies without unnecessary and obstructive defenses;

(2)

decisions and opinions of the Supreme Court have unduly narrowed the broad scope of protection afforded by the Americans with Disabilities Act of 1990, eliminating protection for a broad range of individuals whom Congress intended to protect;

(3)

in enacting the Americans with Disabilities Act of 1990, Congress recognized that physical and mental impairments are natural parts of the human experience that in no way diminish a person’s right to fully participate in all aspects of society, but Congress also recognized that people with physical or mental impairments having the talent, skills, abilities, and desire to participate in society are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;

(4)
(A)

Congress modeled the Americans with Disabilities Act of 1990 definition of disability on that of section 504 of the Rehabilitation Act of 1973 (referred to in this section as section 504), which had, prior to the date of enactment of the Americans with Disabilities Act of 1990, been construed broadly to encompass both actual and perceived limitations, and limitations imposed by society; and

(B)

the broad conception of the definition contained in section 504 had been underscored by the Supreme Court’s statement in its decision in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), that the definition acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment;

(5)

in adopting, in the Americans with Disabilities Act of 1990, the concept of disability expressed in section 504, Congress understood that adverse action based on a person’s physical or mental impairment is often unrelated to the limitations caused by the impairment itself;

(6)

instead of following congressional expectations that the term disability would be interpreted broadly in the Americans with Disabilities Act of 1990, the Supreme Court has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the elements of the definition need to be interpreted strictly to create a demanding standard for qualifying as disabled and, consistent with that view, has narrowed the application of the definition in various ways; and

(7)

contrary to explicit congressional intent expressed in the committee reports for the Americans with Disabilities Act of 1990, the Supreme Court has eliminated from the Act’s coverage individuals who have mitigated the effects of their impairments through the use of such measures as medication and assistive devices.

(b)

Purpose

The purposes of this Act are—

(1)

to effect the Americans with Disabilities Act of 1990’s objectives of providing a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by restoring the broad scope of protection available under the Americans with Disabilities Act of 1990;

(2)

to respond to certain decisions of the Supreme Court, including Sutton v. United Air Lines, 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), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that have narrowed the class of people who can invoke the protection from discrimination that the Americans with Disabilities Act of 1990 provides; and

(3)

to reinstate the original congressional intent regarding the definition of disability in the Americans with Disabilities Act of 1990 by clarifying that the protection of that Act is available for all individuals who are—

(A)

subjected to adverse treatment based on an actual or perceived impairment, or a record of impairment; or

(B)

adversely affected—

(i)

by prejudiced attitudes, such as myths, fears, ignorance, or stereotypes concerning disability or particular disabilities; or

(ii)

by the failure to remove societal and institutional barriers, including communication, transportation, and architectural barriers, or the failure to provide reasonable modifications to policies, practices, and procedures, reasonable accommodations, and auxiliary aids and services.

3.

Findings in Americans with Disabilities Act of 1990

Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101(a)) is amended—

(1)

by striking paragraph (1) and inserting the following:

(1)
(A)

physical and mental disabilities are natural parts of the human experience that in no way diminish a person’s right to fully participate in all aspects of society; and

(B)
(i)

people with physical or mental disabilities having the talent, skills, abilities, and desire to participate in society are frequently precluded from doing so because of discrimination; and

(ii)

other people who have a record of a disability or are regarded as having a disability have also been subjected to discrimination;

; and

(2)

by striking paragraph (7) and inserting the following:

(7)
(A)

individuals with disabilities have been subjected to a history of purposeful unequal treatment, have had restrictions and limitations imposed upon them because of their disabilities, and have been relegated to positions of political powerlessness in society; and

(B)

classifications and selection criteria that exclude individuals with disabilities should be strongly disfavored, subjected to skeptical and meticulous examination, and permitted only for highly compelling reasons, and never on the basis of prejudice, myths, irrational fears, ignorance, or stereotypes about disability;

.

4.

Disability defined

Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended—

(1)

by striking paragraph (2) and inserting the following:

(2)

Disability

(A)

In general

The term disability means—

(i)

a physical or mental impairment;

(ii)

a record of a physical or mental impairment; or

(iii)

being regarded as having a physical or mental impairment.

(B)

Rule of construction

(i)

Determination of impairment

The determination of whether an individual has a physical or mental impairment shall be made without regard to—

(I)

whether the individual uses a mitigating measure;

(II)

the impact of any mitigating measures the individual may or may not be using;

(III)

whether any manifestation of the impairment is episodic; or

(IV)

whether the impairment is in remission or latent.

(ii)

Mitigating measures

The term mitigating measure means any treatment, medication, device, or other measure used to eliminate, mitigate, or compensate for the effect of an impairment, and includes prescription and other medications, personal aids and devices (including assistive technology devices and services), reasonable accommodations, and auxiliary aids and services.

; and

(2)

by redesignating paragraph (3) as paragraph (7) and inserting after paragraph (2) the following:

(3)

Mental impairment

The term mental, used with respect to an impairment, means any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disability.

(4)

Physical impairment

The term physical, used with respect to an impairment, means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting 1 or more of the following body systems:

(A)

Neurological.

(B)

Musculoskeletal.

(C)

Special sense organs.

(D)

Respiratory, including speech organs.

(E)

Cardiovascular.

(F)

Reproductive.

(G)

Digestive.

(H)

Genitourinary.

(I)

Hemic and lymphatic.

(J)

Skin.

(K)

Endocrine.

(5)

Record of a physical or mental impairment

The term record of a physical or mental impairment means a history of, or a misclassification as having, a physical or mental impairment.

(6)

Regarded as having a physical or mental impairment

The term regarded as having a physical or mental impairment means perceived or treated as having a physical or mental impairment, whether or not the individual involved has an impairment.

.

5.

Adverse action

The Americans with Disabilities Act of 1990 is amended by inserting after section 3 (42 U.S.C. 12102) the following:

4.

Adverse action

An adverse action taken by an entity covered under this Act against an individual because of that individual’s use of a mitigating measure or because of a side effect or other consequence of the use of such a measure shall constitute discrimination under this Act.

.

6.

Discrimination on the basis of disability

Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended—

(1)

in subsection (a), by striking against a qualified individual with a disability because of the disability of such individual and inserting against an individual on the basis of disability; and

(2)

in subsection (b), in the matter preceding paragraph (1), by striking the term discriminate and inserting discriminate against an individual on the basis of disability.

7.

Qualified individual

Section 103(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 2113(a)) is amended by striking that an alleged and inserting

that—

(1)

the individual alleging discrimination under this title is not a qualified individual with a disability; or

(2)

an alleged

.

8.

Rule of construction

Section 501 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201) is amended by adding at the end the following:

(e)

Broad construction

In order to ensure that this Act achieves the purpose of providing a comprehensive prohibition of discrimination on the basis of disability and to advance the remedial purpose of this Act, the provisions of this Act shall be broadly construed.

(f)

Regulations

(1)

In general

Not later than 180 days after the date of enactment of the Americans with Disabilities Act Restoration Act of 2007—

(A)

the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation shall issue regulations described in sections 106, 204, 223, 229, 244, and 306, as appropriate, including regulations that implement sections 3 and 4, to carry out the corresponding provisions of this Act, as this Act is amended by the Americans with Disabilities Act Restoration Act of 2007; and

(B)

the Architectural and Transportation Barriers Compliance Board shall issue supplementary guidelines described in section 504, to supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of titles II and III of this Act, as this Act is amended by the Americans with Disabilities Act Restoration Act of 2007.

(2)

Construction

Nothing in this subsection shall be construed to limit the authority of an officer or agency described in paragraph (1) to issue regulations or guidelines under any other provision of this Act, other than this subsection.

(g)

Deference to regulations and guidance

Duly issued Federal regulations and guidance for the implementation of the Americans with Disabilities Act of 1990, including provisions implementing and interpreting the definition of disability, shall be entitled to deference by administrative agencies or officers, and courts, deciding an issue in any action brought under this Act.

.