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Meeting of June 17, 2009 - Proposed Rulemaking Implementing the ADA Amendments Act of 2008

Statement of Constance S. Barker
Commissioner

We are here today to discuss and consider approval of release to OMB of proposed regulations to implement and enforce the Americans with Disabilities Act Amendments Act of 2008. Acting Chairman Ishimaru, Acting Vice Chair Griffin and I are all in agreement that the ADA needed to be amended to bring it back to what Congress intended when the Act was passed in 1990. Congress never intended that individuals who suffered from such diseases as epilepsy, multiple sclerosis, or diabetes would be excluded from the protections of the ADA by court decisions, but this has occurred.

Now that Congress has clarified its intent on the issue of broad coverage, by the words it carefully selected in the ADA Amendments Act and the reports of the Senate Managers, House Education and Labor Committee and House Judiciary Committee, it falls on the EEOC to adjust the regulations to accurately reflect that intent. The challenge for us as an agency is that since we are not legislators and have no law-making authority, we are confined to making those changes in the regulations that correctly reflect Congressional intent. Even if there are concepts that we wish Congress had incorporated into the ADA Amendments Act, we cannot risk shifting the meaning of the words that Congress selected, by gratuitously inserting – or by removing – our own concepts unless there is authority to do so.

The ADA Amendments Act is the successful product of extensive bipartisan deliberation and negotiation by members of Congress and representatives of the disability, education and business communities. Both political parties were in agreement that legislation was needed to bring the courts back to the original intent of the 1990 statute and to “give clear direction to the courts about how they should decide [ADA] cases.” (154 Cong. Rec. S8342-01, S8350 (Sept. 11, 2008)). The goal of Congress was to instruct the courts on the intended broad coverage under the original ADA, but with as few changes to the statute as possible.

The end product – the ADA Amendments Act – represents long hours of Congressional hearings, meetings, discussion and careful negotiation. The final Act reflects a careful balancing of the interests and concerns of the disability, education and business communities. It was passed by overwhelming majorities in both the Senate and the House. The ADA Amendments Act is a shining example of what Congress can accomplish when both political parties agree to set aside their differences and reach across the aisle to address a wrong that needs to be corrected. Congress is to be applauded for putting party politics and differing ideologies aside in passing this very important piece of legislation and particularly for incorporating the disability community and the business community into the deliberative process.

Congress clearly expressed the essential purpose of the Act in these words: “The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act,” and “should not demand extensive analysis.” (ADA Amendments Act of 2008, §§ 2(b)(5) and 3(4)(A)). The role of the EEOC is to make any needed revisions to the regulations to reflect this Congressional intent.

The ADAAA legislative history clearly confirms that it was not Congress’ intent to throw out the ADA and start afresh. Rather, Congress was well aware of the extensive effort that had gone into passage of the ADA in 1990. As Senator Tom Harkin had pointed out in comments on the Senate Floor in April of 2003, the ADA was passed only after “seventeen [Congressional] hearings, 5 committee markups, 63 public forums across the country, 8,000 pages of transcripts, oral and written testimony from the Attorney General of the United States, Governors, State Attorneys General, [and] legislators . . .” (149 Cong. Rec. S5404-02, S5411 (April 28, 2003)).

Keenly aware of the careful bipartisan effort involved in arriving at consensus on the original 1990 Act, Congress considered, and rejected, legislation that would have offered a new approach to the ADA and elected instead to clarify the scope of coverage within the existing framework of the ADA. Congress also gave specific instructions to the EEOC to “revise that portion of its current regulations that defines the term ‘substantially limits’ as ‘significantly restricted’” Congress found that the EEOC’s use of the term “significantly restricted” to define “substantially limited” was “inconsistent with Congressional intent by expressing too high a standard.” (ADA Amendments Act of 2008, § 2(a)(8)) Beyond that, however, language in the legislative history strongly suggests that Congress intended that the EEOC follow its lead and make as few changes as possible to the existing regulations.

In an effort to fully understand the changes that Congress directed, my staff and I, in addition to closely studying the ADAAA and its legislative history, met with Senate and the House staff members and key negotiators for the disability community and the business community. Based on what I believe was a careful and comprehensive review, it is my belief that the proposed revisions to the regulations that are before us today have incorporated a number of changes that were not intended by Congress and that, if left uncorrected, will upset the balance of interests that those who negotiated the wording of the Act were so careful to achieve.

The Acting Chairman, the Acting Vice Chair and I are in total agreement with the clarifications and changes that Congress made to the ADA, but we disagree as to how those changes to the ADA should be reflected in the regulations.

Acting Vice Chair Griffin and I have discussed our differing views on the changes that should be made to the regulations, and while I appreciated her willingness to listen to my concerns and for significant modifications that were made in response to some of my concerns, there are still important aspects of the proposed regulations with which I cannot agree.

In light of the extensive bipartisan effort by the members of Congress and the extensive effort by members of the disability and business communities in arriving at the final legislation, it saddens me that I cannot join my fellow Commissioners in voting in favor of approving the NPRM for release to OMB.

I regret that it is my belief that the proposed NPRM offers changes that were not intended by Congress and which there is no legislative history to support. These proposed changes depart in a fundamental way from the basic concept of the ADA – that disability is determined on the basis of an individualized assessment and not categorically.

For example, two concepts were removed from the regulations. The first concept is “condition, manner or duration,” an important analytical tool for determining whether an individual is substantially limited in a major life activity and thus entitled to reasonable accommodations under prongs one or two of the definition. The second concept is “class of jobs or broad range of jobs,” an important concept for determining whether an individual is substantially limited in the major life activity of working. Had Congress decided against continued use of either of these fundamental concepts, it would have instructed the EEOC to remove them from the regulations – just as Congress instructed us to remove the words “significantly restricted” from the regulations. My concern is that since Congress did not instruct that the concepts be removed or replaced, the courts will reject as arbitrary and capricious, our removal of those concepts and replacement of them with concepts of our own.

Notwithstanding Office of Legal Counsel’s arguments to the contrary, I also believe that the proposed revisions to subsection (j)(5) of the proposed NPRM ignore Congress’ express intent to continue to determine eligibility for reasonable accommodations based on an individualized functional assessment.

My strongest concern, however, is that by removing language that Congress intentionally did not remove and by offering an entirely new approach that Congress did not elect to take, we have failed those who worked so long and hard to negotiate the careful, limited changes to the ADA.

There is much in the proposed revisions to the regulations that I support. My concerns focus on the treatment of substantially limits. While I appreciate the efforts of the Office of Legal Counsel in drafting the proposed regulations, I respectfully suggest that the draft needs considerable additional work in order to be true to Congressional intent. I have shared with the Office of Legal Counsel and the Acting Vice Chair my specific objections to the proposed NPRM. I ask that the entirety of these comments be incorporated into the record of this meeting.