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The ADA Amendments Act of 2008: Another Effort to Eliminate Discrimination Against the Disabled

By: Tiffany Luongo, Esq.
The Human Equation

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In 1990, Congress enacted the Americans with Disabilities Act (ADA) to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities. Upon enactment of the ADA, the United States Supreme Court became constitutionally obligated to interpret and enforce the law in a manner consistent with Congress’s directives. But as a result of several prominent Supreme Court decisions in ADA cases, legislators in Congress have become displeased by the manner in which the law has been interpreted. In response, Congress has passed the ADA Amendments Act of 2008 (ADAAA), effectively expanding the scope of the original law.

In expressing its dissatisfaction with the Supreme Court’s decisions in ADA cases, Congress found that the Court has “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” Moreover, Congress found that the definitions of two seminal legal terms used by the Equal Employment Opportunity Commission (EEOC) were inconsistent with Congressional intent because they expressed too high a standard for individuals seeking protection under the law. Thus, Congress drafted the ADAAA with the goal of correcting the judicial contraction of the ADA’s scope, as well as the EEOC’s expansion of several of the ADA’s minimum applicability thresholds.

In June 2008, the House of Representatives passed a version of the ADAAA (H.R. 3195) by a vote of 402 to 17; the Senate unanimously approved its own, slightly different version of the ADAAA (S. 3406) on September 11. Six days later, the House approved the Senate’s version, and, on September 25th, President George W. Bush signed the bill into law, which will take effect on January 1, 2009.

Although the ADA prohibits discrimination on the basis of disability in several different areas, the ADAAA will likely have its greatest impact in the employment context, requiring employers with 15 or more employees covered by the ADA to adjust their policies and procedures to comply with the ADAAA. Some of the new law’s significant provisions are described below.

Scope of “Disability” Broadened
Determining an individual’s entitlement to protection under the ADA hinges on whether or not that individual suffers from a “disability,” as the term is defined by the ADA. Although other terms and phrases found within the definition of disability have been changed by the ADAAA, the definition of “disability” itself was not. However, what the ADAAA does do is state that “the definition of disability…shall be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA].” This provision was included in the ADAAA to reinstate the broad scope of protection afforded by the ADA that, in the view of the Congress, the Supreme Court has improperly narrowed.

List of “Major Life Activities” Expanded
To qualify as a disability under the ADA, a physical or mental impairment must substantially limit “one or more major life activities” of an individual. In one Supreme Court decision legislatively overruled by the Congress’s enactment of the ADAAA, the Court had held that the word “major” in this context “need[s] to be interpreted strictly to create a demanding standard for qualifying as disabled.” In the ADAAA, however, Congress has explicitly rejected this standard as contrary to the broad scope of protection that is available under the ADA.

Moreover, the ADAAA provides an expanded list of “major life activities,” which includes, but is not limited to:

  • caring for oneself;
  • performing manual tasks;
  • everyday activities such as breathing, seeing, hearing, speaking, eating, sleeping, and walking;
  • standing, lifting, and bending;
  • learning, reading, concentrating, thinking, and communicating; and
  • working.

The ADAAA also introduces a non-exclusive list of major bodily functions, the operation of which constitute major life activities. The list includes, but is not limited to:

  • functions of the immune system;
  • normal cell growth; and
  • functions involving the digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.

Loosening of “Substantially Limits” Requirement
While under the ADA a physical or mental impairment must “substantially limit” one or more major life activities, the ADAAA includes several provisions that loosen this requirement. First, the ADAAA rejects the Supreme Court’s requirement that the word “substantially” be interpreted strictly to create a demanding standard for individuals seeking to qualify as disabled. Furthermore, the ADAAA rejects the Supreme Court’s rule that the word “substantially” be read to mean “prevents or severely restricts.” In this regard, the ADAAA significantly reduces the degree of impairment required for protection under the ADA.

Second, the ADAAA provides that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability. Third, the ADAAA provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.

Finally, the ADAAA provides that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, prosthetics, hearing aids, mobility devices, and oxygen therapy equipment. This provision in the new law expressly overrules a case in which the Supreme Court held that determining whether an impairment substantially limits a major life activity requires reference to the ameliorative effects of mitigating measures. However, there is an important exception to this rule—one that states that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. The purpose of this exception is to prevent the many individuals who wear either ordinary glasses or contact lenses from making claims of disability on those grounds.

Relaxation of “Regarded As” Requirement
The ADA prohibits discrimination against an individual who is “being regarded as” having a disability. Traditionally, an individual claiming that he or she was “regarded as” having a disability had to prove that an employer regarded him or her as being substantially limited in a major life activity. The ADAAA has lifted this burden of proof by providing that an individual may be unlawfully regarded as having a disability “whether or not the impairment limits or is perceived to limit a major life activity.” However, the ADAAA provides that transitory and minor impairments which have an actual or expected duration of less than six months are not considered disabilities under the “regarded as” prong of the definition of disability. Additionally, the ADAAA provides that an employer is not required to provide a reasonable accommodation or make reasonable modifications to policies, practices, or procedures for an individual who meets the “regarded as” prong of the definition of disability.

Shift of Focus in ADA Cases
Through the ADAAA, Congress has conveyed its intent that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and that the question of whether an individual’s impairment qualifies as a disability under the ADA should not demand extensive analysis. Such a shift is significant because employers have historically been very successful in arguing that a plaintiff is not disabled under the ADA and is therefore ineligible for its protection. By reducing the amount of attention that is to be focused on a plaintiff’s status as disabled, it is likely that more ADA cases will end up going to trial rather than being resolved summarily without a trial.

There is no denying that the ADAAA has expanded the number of individuals who may be entitled to protection under the ADA. At the very least, the ADAAA has made it easier for employees to state a claim under the ADA and, at the same time, the ADAAA has seemed to make it more difficult for employers to defend against such claims. At this time, the ultimate impact of the ADAAA is difficult to determine. Adding to the uncertainty is the fact that the EEOC has yet to promulgate any regulations interpreting the ADAAA’s provisions. Moreover, until the ADAAA is tested in court, it is virtually impossible to predict the precise standard to which employers will be held in the future.

Nevertheless, on January 1, 2009, all entities that are covered by the ADA will be required to comply with the new law. To this end, all employers should consult a licensed professional in the near future to see which changes need to be made to existing company policies and procedures to ensure a seamless and successful transition from the ADA to the ADAAA.

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The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation or are not updated after initial publication and may not contain the most current information available.