On July 15, 2008, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on pending legislation passed by the House of Representatives (H.R.3195) that would alter the reach of the Americans with Disabilities Act (”ADA”). Scholars, lawyers, consultants and analysts, and disabled persons appeared before the panel to discuss the proper scope of coverage for the Americans with Disabilities Act (”ADA”). The discussion centered on the proper definitions of the term “disability” and the phrase “substantially limits” under the proposed bill.

In 1999, the Supreme Court limited the definition of “disability” when it ruled that mitigating measures must be considered in determining whether an individual’s impairment substantially limits a major life activity. This trend continued in 2002 in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, where the Supreme Court ruled that the words “substantially limits” and “major life activities” were to be interpreted strictly to create a “demanding standard for qualifying as disabled,” a standard that would remove thousands of disabled individuals from the Act’s coverage.

In light of this strict reading of the ADA’s provisions, the House of Representatives passed the ADA Amendments Act of 2008 (H.R. 3195) on June 25, 2008. Senator Harkin (D-IA) pointed to the ADA’s history of bipartisan support and the current consensus that the Supreme Court has interpreted the definition of “disability” too narrowly. While acknowledging problems needing follow-up in the House bill, Sen. Harkin pressed for broader coverage under the ADA.

Testimony at the hearing also centered on H.R. 3195’s definition of the phrase “substantially limits” as “materially restricts” and asked whether that definition provided a clear standard for the courts to apply. Most witnesses supported H.R. 3195’s definition. Law professors Samuel R. Bagenstos and Chai Feldblum stated separately that the “materially restricts” definition contained in the Act provided the appropriate level of clarity and that courts could effectively apply the standard. Michael Eastman, Employment Policy Director of the U.S. Chamber of Commerce, also supported the H.R. 3195’s definition, calling it a collaborative effort between business and the legislature.

One witness, Terry W. Hartle, Senior Vice President of the American Council on Education, expressed concern that that the broader definition of “substantially limits” in H.R. 3195 might force the academic community to alter essential elements of core education programs. Sen. Harkin disagreed, pointing out that this concern was directly contradicted by the unchanged statutory language. He explained that the only way to ensure that courts could never alter academic programs would be to institute a total ban on such actions - an idea he found unrealistic. Specific to standardized testing, educational consultant Jo Anne Simon dismissed as unfounded concerns that the new definition of “substantially limited” could create havoc in the field of standardized testing by requiring extra time and other accommodations for marginally afflicted students. Simon explained that the bill merely allowed persons with disabilities to be more easily identified and did not necessarily require increased accommodation.

Andrew Grossman, Senior Legal Policy Analyst of the Heritage Foundation and critic of H.R. 3195, submitted comments centering on compliance costs to businesses.  Calling the bill’s approach “vague,” he stated that the uncertainty created by H.R. 3195 will lead businesses to waste resources in attempting to comply with unclear standards. Grossman’s comments echoed the testimony of Sue Gamm of the Public Consulting Group, who urged adoption of more specific language.

Sen. Harkin concluded the hearing by reaffirming his commitment to H.R. 3195’s passage prior to the close of the year.

On June 26, 2008, Sen. Kay Bailey Hutchinson (R-TX) proposed legislation that would extend the time limit workers have to file suit for employment discrimination in certain cases. The “Title VII Fairness Act” (S. 3209) would allow for an extension in cases where workers cannot reasonably be expected to have known they had been discriminated against.

The bill is a response to the Supreme Court’s decision last year in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), which rejected the “paycheck rule” used by many courts and held that the time limit for filing a discrimination charge with the EEOC starts to run when the employer makes a discriminatory decision about the employee’s compensation, not each time the employee receives a paycheck affected by discrimination.

The proposed legislation would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker had notice of the discrimination. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Earlier this year, Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA) proposed legislation (S. 1483) aimed at the Ledbetter decision that would amend the same laws as Sen. Hutchinson’s bill. Sen. Kennedy’s bill would provide that the charge-filing periods would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice. Republican lawmakers criticized this approach by suggesting it would put unnecessary strain on employers because claims could be filed several years after the discrimination was alleged to have occurred.

Sen. Hutchinson’s bill was referred to the Senate Health, Education, Labor, and Pensions Committee. Sen. Mike Enzi (R-WY), the ranking Republican member of that committee, is a co-sponsor of the bill.

 Core Provisions: This bill would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker is charged with notice. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Status: S. 3209 was introduced in the Senate by Sen. Kay Bailey Hutchison (R-TX) on June 26, 2008, and referred to the Senate Committee on Health, Education, Labor, and Pensions.

 On June 25, 2008, the House approved legislation (H.R. 3195) that would redefine the legal meaning of “disabled” under the Americans with Disabilities Act. Strong bipartisan support for the bill was reflected in the 402-15 vote. The legislation would establish new definitions for “disabled,” which has been narrowed by Supreme Court interpretations over the past decade, by changing the description from a physical or mental impairment that “substantially limits” one or more major life activities to one that “materially restricts” such an activity. The bill also would re-extend protections to people with disabilities not immediately evident in the workplace.

While President Bush has indicated support for the “overall intent” of the bill, the White House suggested changes to the House bill on June 24, 2008.  However, the bill was brought up under a “closed rule” that did not permit amendments.  As a result, the White House suggestions were not adopted.

The bill now heads to the Senate, where it has been championed by Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA). Sen. Kennedy is not expected to return to work until after the August recess, and the bill has yet to be scheduled for a markup or vote in the Senate.

On June 26, 2008, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing to examine discrimination against transgender employees. The term “transgender” refers to individuals who feel that their biological gender does not match their true gender identity, some of whom undergo gender reassignment.

In November 2007, the House passed the Employment Non-Discrimination Act (ENDA) (H.R. 3685), which would prohibit employment discrimination on the basis of sexual orientation, but language prohibiting transgender discrimination was removed from the bill to facilitate its passage. Although the Subcommittee hearing did not concern any specific bills, Rep. Frank (D-MA) introduced legislation last fall that would prohibit discrimination on the basis of an employee’s “actual or perceived gender identity” (H.R. 3686).

Speaking in support of federal legislation to ban discrimination against transgender employees were Rep. Baldwin (D-WI), Rep. Frank (D-MA), and Dr. Bill Hendrix, the chair of Gays, Lesbians, and Allies at Dow Chemical Company. Rep. Baldwin pointed out that over 300 major U.S. businesses now ban discrimination based on gender identity, and commended them for being “way ahead of Congress.” Rep. Frank argued that any potential workplace disruption caused by transgender employees does not justify denying these individuals the chance to earn a living. Dr. Hendrix testified that creating a respectful working environment is critical to business success, and that Dow’s progressive lesbian, gay, bisexual, and transgender policies give the company an advantage in the hiring and retention of qualified workers.

Shannon Price Minter, the Legal Director of the National Center for Lesbian Rights, testified that there is an urgent need for federal law to protect transgender workers. He explained that transgender people often face discrimination, harassment, and even violence in the workplace. Although twelve states, the District of Columbia, and over 100 localities have enacted laws that prohibit discrimination against transgender workers, Minter argued that we need more than a “patchwork of laws.” The Subcommittee also heard testimony from two individuals who were stated that they were terminated after informing their employers of their intentions to undergo gender reassignment.

JC Miller, a partner at Thompson Hine LLP, cautioned the Subcommittee about the wording of any legislation to protect transgender workers and the unintended consequences that it might have. She also stressed that any legislation needs to make clear to employers the point at which they need to make modifications to accommodate transgender employees. Finally, Miller asked the Subcommittee to consider conferring exclusive jurisdiction on the federal courts and providing that prevailing parties be awarded costs and fees when litigation arises under any legislation that is enacted.

Glen Lavy, Senior Counsel and Senior Vice President for Marriage Litigation at the Alliance Defense Fund, opposed any federal legislation to ban discrimination against transgender employees. He testified that Congress should not make the “moral judgment that it is immoral for employers to not accommodate transgender employees.” He argued that hiring and retaining transgender employees might contravene some employers’ religious beliefs, that employers would be put in a difficult position because gender identity is not something that is readily observable, and that some employers would not be able to accommodate transgender employees as a practical matter.

During the questioning period, Rep. Kline (R-MN) questioned Miller about whether the terminology used in any potential legislation would require overt action by an employer in order to establish a violation. Rep. Sanchez (D-CA) expressed the view that potential litigation resulting from a transgender-protection law should not prevent Congress from passing such a law. Chairman Andrews (D-NJ) concluded by saying that Congress will need to accommodate the reasonable concerns of employers in passing legislation to prohibit employment discrimination against transgender Americans, but that he did not think that it would be prohibitively complicated to do so.

On June 24, 2008, the White House issued a statement of administration policy supporting the goals of the ADA Amendments Act of 2008 (H.R. 3195), but asking Congress to address the President’s outstanding concerns. The bill was marked up and passed out of the House Committee on Education and Labor on June 18 by a 43-1 vote.

The administration anticipates “significant avoidable litigation” would result from the legislation’s redefinition of “substantially limits” to mean “materially restricts,” a term undefined by the ADA. 

The administration suggested changes of the legislation’s treatment of “transitory” and “minor” impairments. Specifically, the White House proposes excluding from coverage impairments that are either transitory or minor, rather than only impairments that are both transitory and minor. The administration also expressed concern that the bill does not explicitly apply the “transitory and minor” exception to the general definition of disability.

In its statement, the administration expressed a willingness to work with Congress to amend H.R. 3195. However, the House Rules Committee approved a closed rule and the bill is closed to amendments. The House is expected to begin debate on the bill on June 25 or June 26, with 40 minutes of debate allotted to the House Education and Labor Committee and 20 minutes for the House Judiciary Committee.

On June 18, 2008, following a morning markup session, the House Committee on Education and Labor passed the ADA Amendments Act of 2008 (H.R. 3195) out of committee by a vote of 43-1, advancing the bill to the House floor. In January 2008, the Committee held a hearing on H.R. 3195 (previously the “ADA Restoration Act of 2007″), which clarifies the legislative intent of the ADA in the face of court decisions limiting its scope. A relatively broad base of Congressional support exists for the bill.

The ADA Amendments Act of 2008 responds to three U.S. Supreme Court decisions requiring courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. The bill specifically rejects these decisions, prohibiting the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled. Both Chairman Miller (D-CA) and Rep. McKeon (R-CA), the Committee’s ranking Republican, applauded this provision, which they claim restores the original intent 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. Rep. McKeon supported the removal of this provision as achieving a necessary balance, allowing the bill to restate the broad scope of the ADA without trivializing its protections. Chairman Miller described the ADA Amendments Act as a “compromise,” recognizing that many advocates for the disabled might find the bill does not go far enough, while emphasizing the importance of strengthening the ADA through its passage.

Rep. Price (R-GA) and Rep. Kuhl (R-NY) expressed concern over the bill’s extended definition of what it means to be “substantially limited” in a “major life activity.” Both stated that by containing a comprehensive list of what qualifies both as a “substantial limitation” and a “major life activity,” the bill might exclude certain groups of disabled individuals while also leading to further litigation and interpretation by the courts. Rep. Andrews (D-NJ) countered that such specificity intentionally limits the purview of the courts and suggested that the previously broad language of the ADA had allowed courts to limit its scope. Rep. Andrews also emphasized that the bill does not prevent other unnamed impairments from falling under the scope of the ADA.

Some members voiced concern with the Committee’s haste in pushing the legislation forward. Rep. Price stated that fast-tracking the bill had not provided an opportunity to “soberly” evaluate its language. Rep. Hinojosa (D-TX) disagreed, joined by Rep. Andrews, Rep. McCarthy (D-NY) and Rep. Davis (D-CA), all emphasizing the importance of moving this legislation after years of allowing courts to limit the ADA’s reach. Chairman Miller pointed to Congress’s opportunity to refine the bill’s language as it advances through the legislative process.

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act (H.R. 493) into law. The bill prohibits employers from discriminating against employees on the basis of genetic information in hiring, firing, and other activities. It also prohibits health insurers from discriminating against individuals on the basis of genetic information and is intended to encourage individuals who might otherwise fear genetic discrimination to seek potentially beneficial genetic testing.

The Senate unanimously passed the bill on April 24 and the House of Representatives followed suit on May 1 by a vote of 414-1.

Core Provisions: This Act would amend Title VII, ERISA, and other laws to prohibit employers and health insurers from discriminating against individuals on the basis of genetic information. Under the Act, employers may not discharge, refuse to hire or otherwise discriminate against employees on the basis of genetic information. Further, the Act prohibits health insurers from adjusting premiums on the basis of genetic information, requiring genetic testing or collecting genetic information for underwriting purposes. The Act provides that genetic information includes results of genetic testing of the individual or his/her family members, as well as the manifestation of a disease or disorder in family members of such individual.

Status: On April 10, 2007, Sen. Kennedy (D-MA) from the HELP Committee submitted Report No. 110-48 recommending passage of S.358. The House passed H.R.493 on April 25, 2007.  The Senate unanimously passed H.R. 493, as amended, on April 24, 2008. The House passed H.R.493, as amended, on May 1, 2008 by a 414-1 vote. President Bush signed the amended bill into law on May 21, 2008.

On May 1, 2008, the House of Representatives passed the Genetic Information Nondiscrimination Act (H.R. 493) by a vote of 414-1. The bill, which was unanimously passed by the Senate on April 24, now moves to President Bush, who has indicated that he will sign the bill within the next two weeks. The House had previously passed an earlier version of this legislation in April 2007.

The bill prohibits employers from discriminating against employees on the basis of genetic information in hiring, firing, and other activities. It also prohibits health insurers from discriminating against individuals on the basis of genetic information and is intended to encourage individuals who might otherwise fear genetic discrimination to seek potentially beneficial genetic testing.

Former Republican presidential candidate Rep. Ron Paul (R-TX) cast the lone vote in opposition to the bill.