By Steny H. Hoyer
Washington Post

Sunday, January 20, 2002; Page B01 Earlier this month, Supreme Court Justice Sandra Day O'Connor said she understood the intent of Congress -- what my fellow lawmakers and I meant -- when we wrote and then enacted the Americans with Disabilities Act in 1990. She never asked for my view; the court doesn't work that way. Still, in four places in her opinion, Justice O'Connor cited a phrase or context to invoke what "Congress intended." Then she and her fellow justices unanimously narrowed the scope of the act and ordered a lower court to reconsider a decision that allowed a woman suffering from carpal tunnel syndrome to be excused from certain tasks at a Toyota Motor plant in Kentucky. Casting doubt on the woman's right to protection under the legislation, O'Connor wrote that a disability must substantially limit major activities "that are of central importance to most people's daily lives."

It is difficult to say, based solely on the letter of the law as we wrote it, that O'Connor is wrong. But as the congressman who shepherded the legislation through the House of Representatives, I believe that the "intent of Congress" was clearly more expansive than Justice O'Connor's ruling would suggest.

It is not unusual for the Supreme Court to invoke "the intent of Congress" in interpreting the Constitution or pieces of legislation. It helps make our Constitution and laws living documents instead of dead letters. But divining the intent of Congress, even a decade ago, can be tricky business, especially given the compromises and disparate motives that go into the making of legislation.

In this case, I know a lot about the intent of Congress and how the Americans with Disabilities Act came into being. The story sheds light on what we meant by disability and on the perils of judicial attempts at retroactive mind reading. The original sponsor of the ADA in the House was Tony Coelho, then a California Democrat and majority whip. Coelho had a personal interest in the bill. After a head injury suffered as a child, Coelho developed epilepsy. This would not fit the court's definition of something that prevented Coelho from performing major life activities. Unless someone told you about his epilepsy, you would never know he had it. Yet because of misconceptions about the effects of epilepsy, he had been expelled from a seminary, had his driver's license revoked, been discriminated against by health insurers, and rejected by the armed services. When Coelho resigned from Congress in 1989, he asked that I take over stewardship of the bill. My wife also had epilepsy, though it was under control. So I knew of the prejudice such illnesses can evoke. And it contributed to my belief that a range of illnesses should be covered by the ADA and should not disqualify a person from employment or cause discrimination.

This highlights a crucial issue in the ADA debate: perceptions are important to overcome, too. Many medical conditions, like mental illness, if treated properly, are not debilitating. In our minds, it was important to protect not only people who had genuine trouble functioning normally, but also people whose employers might wrongly perceive as being substantially impaired. When writing the legislation, we borrowed the definition of handicapped from the Rehabilitation Act of 1973, which applied to federal grant recipients. We did this because the courts had generously interpreted this definition. Moreover, we thought using established language would help us avoid a potentially divisive political debate over the definition of disabled. The ADA was designed to extend protection to people working in the private sector and seeking access to public accommodations, transit systems and communications networks. So we simply adopted the definition of disability from language in the 1973 act.

Justice O'Connor cited that language in her opinion earlier this month. That's where she found reference to an illness "that substantially limits one or more of the major life activities of [an] individual." Ella Williams, the woman at the Toyota plant who had carpal tunnel, might not be able to prove her condition blocks her from one of life's major activities, such as walking, seeing or hearing. O'Connor said that "household chores, bathing and brushing one's teeth" were also the types of tasks the court of appeals should have considered in deciding whether Williams was "substantially limited" in performing manual tasks.

Is this what we had in mind when we passed the ADA -- that lawyers for businesses and individuals should spend time and money arguing about whether people can brush their teeth and take out the garbage? Not at all. The whole tenor of the debate at that time was far broader. For example, we defeated an amendment introduced by Rep. Jim Chapman (D-Tex.) to protect restaurant owners who refused to hire people with HIV/AIDS. The restaurant owners wanted the law to specifically exclude HIV/AIDS from the definition of disability. No disability, no protection. The restaurant owners' association argued that if, medical evidence to the contrary, the public perceived that people could transmit AIDS by handling food, and people would avoid restaurants that employed such people. But the majority in Congress wanted AIDS sufferers, and others perceived as disabled, to be covered by the ADA, so in the end the law did not mention the issue.

There could of course be 535 different answers about the intent of Congress when it passed the ADA. It passed both houses by wide margins: 403 to 20 in the House and 76 to 8 in the Senate. Several committees and subcommittees in the House -- including the telecommunications, education and labor, judiciary, and transportation committees -- weighed different sections. I led the battle on the House floor. On the Senate side, the legislation was co-sponsored by Tom Harkin (D-Iowa), Robert Dole (R-Kan.) and 32 other senators. If anything, Harkin had a more expansive definition of disability than I did. His deaf brother was sent to the Iowa School for the Deaf and Dumb, where students were taught one of only three trades: baker, printer or cobbler. And Dole, who suffered a debilitating injury to his right arm in World War II, was also a strong and leading advocate of the ADA.

When we wrote the ADA, we estimated that 43 million people would be covered. That seemed like a lot and we thought that showed we intended the law to be broad rather than narrow. Until the ADA passed, the average guy thought of a disability as something that meant you couldn't walk or see or hear. Our broader estimate helped build support for the legislation. Now, however, O'Connor has cited that figure to say that carpal tunnel and other conditions might push the national total of people protected under the ADA far beyond 43 million and that Congress did not intend that. "If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher," she wrote. But the number we used wasn't designed to limit the effect of our legislation, but to show its breadth.

When President George H.W. Bush signed the Americans with Disabilities Act in July 1990, partisans on both sides of the aisle rejoiced that we had made our nation a better place for everyone. Bush said, "with today's signing of the landmark ADA, every man woman and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom." Has our vision come to fruition? Yes and no.

The ADA has clearly helped people with some disabilities. It has transformed how architects design buildings, how conference organizers plan events, and how states provide services to people with mental illness and retardation. But defense lawyers in recent years have concocted novel arguments to exclude impairments that do not sufficiently limit a major enough activity. People with diabetes, heart conditions, cancer and mental illnesses have had their ADA claims kicked out of court because, with improvements in medication, they are "too functional" to be considered "disabled." One trial judge ruled that a salesman who tried to return to work after recovering from a heart attack was not "disabled," and therefore not entitled to protection when his employer fired him because it feared he would not be as productive as before.

Recent studies show that plaintiffs lose 90 percent of ADA claims, mostly on the grounds that they are not disabled enough. Ironically, that includes a majority of claims brought by Coelho's fellow epileptics. The ADA has become a "Lawyers' Employment Act," instead of the "People's Empowerment Act" we intended it to be.

So perhaps the most striking thing about the Supreme Court's decision this month in Toyota Motor Manufacturing v. Williams is how we and the advocates for the disabled failed to anticipate what this court's views of our views would be.

Our responsibility now is to revisit both our words and our intent in passing the ADA. In matters of statutory interpretation, unlike constitutional matters, Congress has the last word. We can decide whether the employment policy effectively put into place by the Supreme Court's interpretations of the ADA is a solid one. Or we can decide to rewrite the statute. In either case, Congress must look at this landmark civil rights law and determine whether it is carrying out the promise and potential we all celebrated in 1990.

Steny Hoyer, a Democrat, represents Maryland's 5th Congressional District in the House of Representatives