Senate Set to Move on ADA Reform Measure

Both presumptive major party presidential nominees—Sens. John McCain, R-Ariz., and Barack Obama, D-Ill.—are among more than 60 co-sponsors of the measure.

Additionally, similar legislation won overwhelming support in the House of Representatives earlier this summer (BI, June 30).

The bill would instruct courts to interpret the definition of disability under the ADA broadly. Like the House bill of the same name, the measure would make clear that the use of mitigating measures, such as diabetes medication, would not remove an individual from the ADA's protections.

Sen. Harkin said the bill comes in response to a series of court decisions that unfairly restricted the scope of the ADA's protections.

The measure, which is bypassing committee consideration and moving directly to the full Senate for consideration after Congress returns next month, should receive a favorable reception there, say observers.

"I think it's pretty clear that it's going to pass the Senate," said Lawrence Lorber, a partner in the Washington office of Proskauer Rose L.L.P. With more than 60 co-sponsors representing every point on the political spectrum and "with no indication that anybody is opposed to it, I assume it would pass with at least as overwhelming as the House bill," he said.

"We're optimistic this can be the vehicle that can move forward and restore the original intent of the ADA," said Keith Smith, director-employment and labor policy at the National Assn. of Manufacturers in Washington.

"We're definitely optimistic that the Senate will recognize the importance of this and move forward," Mr. Smith said.

Mr. Lorber pointed out that the Senate bill "differs in one pretty dramatic respect" from its House counterpart, as Sen. Harkin explained when he introduced the measure.

"The Senate bill builds upon the success of the House bill," said Sen. Harkin. "However, it seeks to broaden the definition of disability in a way that maximizes bipartisan consensus and minimizes unintended consequences.

"Our bill leaves the ADA's familiar disability language intact: A person with a disability is one who has a physical or mental impairment that `substantially limits' one or more of the major life activities of the individual," Sen. Harkin said. "It does not substitute the term `materially restricts' as in the House bill. Instead, the bill takes several specific and general steps that, individually and in combination, direct courts to take a more generous meaning and application of the definition."

"The biggest difference between that bill and the House is the definition," said Michael Eastman, executive director-labor law policy with the U.S. Chamber of Commerce in Washington.

He said both bills reflect common ground reached by business groups and the disability community. "Both the Senate and the House bills embody that common ground. We're comfortable with both of them," Mr. Eastman said.

The Senate bill "makes clear what the intent of Congress is," said Mr. Lorber.

NAM's Mr. Smith stressed that both the House and Senate bills arose from discussions between employer groups and organizations representing the disabled.

"The real thing that needs to be celebrated here is the process" by which the business and disability communities worked out a compromise, he said. "This is the result of detailed negotiations."

"The NAM is very supportive of this," said Mr. Smith.

"At the end of the day, we support both bills," said the Chamber's Mr. Eastman.

He said the Chamber was "certainly hopeful" that the Senate would deal with the measure quickly.

"Our goal has been to try to get this on the president's desk this year," Mr. Eastman said.

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