On September 11, 2008, by unanimous consent, the Senate passed compromise legislation (S.3406) that would amend the Americans with Disabilities Act (”ADA”). Introduced in response to a series of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA, the legislation purports to return the ADA to its original scope as intended by Congress in 1990.

S.3406 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 sticking point previously holding up S.3406’s passage has involved Congress’s attempt to define of the term “substantially limits” under the ADA. Coverage under the ADA turns in large part on whether an individual is “substantially limited” in the ability to perform “major life activities.” Recent court decisions have taken a narrow view of “substantially limits” and Senate Democrats had sought to widen the ADA’s coverage by broadly defining the term. Language in H.R. 3195, a similar bill which passed the House of Representatives on June 25, defined the term to mean “materially restricts.” Republicans and business groups objected to that definition, warning H.R.3195’s language threatened to bring a bevy of relatively minor impairments under the ADA’s umbrella. Accordingly, following a bipartisan compromise, the final version of S.3406 omitted the “materially restricts” language, instead providing boarder coverage under the ADA through a preliminary section on Congressional findings and purposes.

The House of Representatives is expected to take up the bill once again in upcoming weeks. If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.