Friday, August 1, 2008

Harkin-Hatch introduce new ADA Amendments Act in Senate

Congress Via Thompson Publishing's HR alerts (see here),

New ADA Amendments Act Introduced in Senate

A new version of the ADA Amendments Act was introduced in the Senate today. Sen. Tom Harkin, D-Iowa, and Sen. Orrin Hatch, R-Utah, introduced S. 3406 which, while similar to the House's version, makes two significant changes.

First, the bill does not define the term "substantially limits," which the House originally defined as "materially restricts." Representatives from the business community voiced concern about the definition at a recent hearing, so the Senate bill now advises courts to consider a substantial limitation as an impairment that prevents or severely restricts an individual from doing activities that are of central importance to most people's daily lives.

The bill also includes a provision requested by the education community. It specifies that reasonable modifications to policies -- including academic requirements in postsecondary education -- are not required if they would fundamentally alter the program.

View the bill at: http://www.thompson.com/images/thompson/pdfs/adaaa_bill_text.pdf

For more information on the bill, see the next issue of the ADA Compliance Guide newsletter.

We've blogged before here and noted the passage in the House of the House version, the ADA Restoration Act here.

MM

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Comments

Ok, I'm just slowly getting through a backlog of my email -- so maybe someone else has already corrected this mistake.

But in case not! -- I have spent the past six months leading the negotiations for the disability community with the business community on the ADA Amendments Act. We came up with the new term "materially restricts" in order to indicate to the courts that they were to define "substantially limits" at a lower threshold than the EEOC had done (defining it as "unable to perform" or "severely or significantly" restricted in performing a major life activity), and at a lower threshold than how the Supreme Court had applied the term in the Toyota v. Williams case.

The established business community was not opposed to the term "materially restricts, since that was the term we had all come up with together. Check out this link for the hearing before the Senate HELP committee for the testimony of Mike Eastman from the Chamber of Commerce:

http://help.senate.gov/Hearings/2008_07_15/2008_07_15.html

However, Senator Hatch and his staff were not comfortable with the creation of a new term in the statute, that was again not defined. After an intensive week of discussions, we decided that the key point was to communicate to the EEOC and the courts that their interpretation of "substantially limits" had been too strict. And we decided we could do that without creating a new term.

For that reason, there are two new findings in S. 3406 (as compared to H.R. 3195) that explicitly note that the EEOC and the Supreme Court have applied too high of a standard, inconsistent with Congressional intent, when they interpreted "substantially limits" to means "severely" or "significantly" restricts." There is also a new purposes provision that sets forth Congress' expectation that EEOC will revise those regulations that have created too high of a standard.

And yes, there was a sentence added for the education community restating current law. If you watch the webcast of the July hearing, you'll hear Terry Hartle from the American Council on Education asking for such a provision. Whatever.

If anyone wants background info on the ADA Amendments Act, feel free to email me directly at feldblum@law.georgetown.edu.

Cheers,

Chai

Posted by: Chai Feldblum | Aug 10, 2008 6:11:33 PM

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