On July 31, 2008, Sen. Tom Harkin (D-IA) introduced bipartisan legislation (S. 3406) amending the Americans with Disabilities Act (”ADA”). Like H.R. 3195, a similar bill which passed the House of Representatives on June 25, the legislation responds to three U.S. Supreme Court decisions that have narrowed the scope of the ADA.

The ADA Amendments Act does not include a previously-considered provision removing the ADA’s requirement that a disability “substantially limit” an individual’s ability to perform “major life activities.” Many members of Congress and the public have criticized eliminating this language, arguing that doing so would allow for a wide range of relatively minor impairments to be included under the ADA’s umbrella. S. 3406 continues the “substantially limits” requirement, considering “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions” as “major life activities” under the bill. For the “regarded as” category, the bill would exempt minor impairments and impairments lasting six months or fewer as outside the scope of coverage.

S. 3406 purports to return the ADA to its original scope as intended by Congress, and requires courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. In rejecting Supreme Court precedent, the bill specifically prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses. 

A bipartisan majority of the Senate has already signed on to co-sponsor S. 3406 and the bill has drawn support from disability rights activists as well as the business community, including the Chamber of Commerce. The Senate is expected to take up the bill in September following its summer recess. If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.