Labor & Employment Law Articles

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008 (the "ADAAA" or the "Act").  The Act, which goes into effect on January 1, 2009, expands the protection afforded to individuals with disabilities under the Americans with Disabilities Act of 1990 (the “ADA”) by clarifying the ADA’s definition of disability and overturning several Supreme Court decisions and EEOC regulations that narrowly interpreted the ADA.  Although the definition of "disability" remains the same—“a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment”—the application of that language is changed under the Act.  As a result of these changes, millions of persons not previously covered by the ADA will now qualify for its protections.

Definitions of “Substantially Limits” and “Major Life Activities” Expanded 

In Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court held that to be substantially limited in performing a major life activity under the ADA, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”  The ADAAA states that this is “too high a standard.”  Similarly, the ADAAA finds that current EEOC regulations that define “substantially limits” as “significantly restricts” express too high a standard.  The ADAAA directs the EEOC to revise its regulations defining “substantially limits” to be consistent with the ADAAA’s goal of broadening “coverage of individuals under this Act, to the maximum extent permitted.” 

The Act also expands the definition of "major life activities" by including two non-exhaustive lists:

§         The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that the EEOC has not specifically recognized (e.g., reading, bending, and communicating);

§         The second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions").

More Protection for Individuals “Regarded As” Disabled

Previously, individuals claiming they were “regarded as” having disabilities had to prove the employer mistakenly regarded them as having impairments that substantially limited a major life activity.  Under the ADAAA, individuals bringing a claim under the “regarded as” theory will only have to prove that they were discriminated against because of an actual or perceived physical or mental impairment, regardless of whether or not the impairment actually limits or is perceived to limit a major life activity. 

However, under the ADAAA, employers do not have to provide a reasonable accommodation to individuals who are regarded as disabled but are not actually disabled.  Also, the ADAAA excludes “regarded as” claims for transitory or minor impairments, which the ADAAA defines as those with an actual or expected duration of six months or less.

Mitigating Measures No Longer Relevant

The Act also overturns the Supreme Court’s decision in Sutton v. United Air Lines, Inc. (1999), where the Court held that mitigating factors, such as prosthetics and medication, must be taken into account when determining whether an individual is disabled.  Under the ADAAA, courts and employers may no longer consider mitigating measures (except for eyeglasses and contact lenses) in determining whether an individual’s impairment substantially limits a major life activity. 

No Reverse Discrimination

Finally, the ADAAA states that there can be no claim for “reverse discrimination” under the ADA.  Specifically, the Act states that individuals who do not have disabilities may not claim that they were subject to discrimination because of their lack of a disability, or that they were treated less favorably or not given the same accommodations as disabled individuals.

Summary

Until the EEOC issues new regulations pursuant to the ADAAA, we cannot fully understand the full scope of these amendments.  However, it is clear that workers will enjoy greater protections than in the past.  Thus, greater care must be exercised in making employment decisions for individuals who may now be considered disabled under the law.