On November 15, 2007, the Senate Committee on Health, Education, Labor and Pensions (HELP) heard testimony from interested parties on the proposed ADA Restoration Act (S.1881), which seeks to “clarify” the factors used to determine whether an individual is disabled within the meaning of the Americans with Disabilities Act (ADA). The Committee received testimony from ADA proponents, disability rights activists, and a management attorney.

John D. Kemp, an attorney and disabilities activist, testified that the Supreme Court has “create[d] a bizarre legal scenario in which an employer can refuse to hire or terminate an individual expressly because of [his or her] disability, and then – when challenged – argue that the individual is not ‘disabled enough’ to fall within the protections of the ADA.”

Former U.S. Attorney General Dick Thornburgh also voiced his support for the proposed legislation. Thornburgh stated that the ADA’s intent and effectiveness has been curtailed by “judicial misinterpretation,” and urged Congress to restore the ADA’s “original intent and protections.”

Management lawyer Camille Olsen cautioned the Committee that the proposed Act would change “the focus of the ADA from whether an individual has a functional disability to whether the individual has an impairment,” thus expanding ADA coverage to encompass “almost any physical or mental impairment – no matter how minor or short-lived.” Olsen contended that, as currently drafted, the Act would not simply clarify the intent of the original ADA but rather would drastically alter core provisions.

S.1881 is still before the HELP Committee and has two co-sponsors. The House version of the legislation, H.R.3195, has 235 co-sponsors and is before several House committees and subcommittees.