Disability Discrimination – ADA Amendments Act Of 2008 Expands Key Terms

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Disability Discrimination – ADA Amendments Act Of 2008 Expands Key Terms

The ADA Amendments Act of 2008 (“the Act”), Pub. L. No. 110-325 (2008), took effect on January 1, 2009, approximately 19 years after Congress passed 42 U.S.C. §§ 12101-12213, the original Americans with Disabilities Act (“ADA”), in 1990.

Congress passed the new law to reverse the narrow ADA interpretations used by the United States Supreme Court (“Supreme Court”) and the Equal Employment Opportunity Commission (“EEOC”). For example, the original ADA defined a person with a “disability” as someone who (i) has a physical or mental impairment that substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. In the case of  Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), however, the Supreme Court held that the effects of mitigating measures – like corrective lenses, medications, hearing aids, and prosthetic devices – must be considered when deciding whether an impairment is “substantially limiting” under the ADA. Three years later, the Supreme Court narrowly interpreted two key words used to define a disability under the ADA. First, the Supreme Court held that a “substantially limiting” impairment is one that is “considerably” limiting, or limiting “to a large degree.” See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Second, the Supreme Court held that a “major life activity” must be an activity of central importance to most people’s daily lives. See Id. In passing the Act, Congress expressly rejected the Sutton and Williamsdecisions, as well as EEOC regulations containing similarly narrow ADA interpretations.

The Act contains a lengthy “Findings and Purposes” section which explains that the new law is designed to reject current Supreme Court case law concerning the ADA, which Congress deemed restrictive. “The question of whether an individual’s impairment is a disability under [the ADA] should not demand extensive analysis.” Rather, “the primary object of attention . . . should be whether entities covered under the ADA have complied with their obligations.” Further, according to Congress, the Supreme Court and the EEOC misinterpreted the language of the original ADA, “thus eliminating protection for many individuals whom Congress intended to protect.” The new law contains a number of ambiguities, the interpretation of which Congress directs certain federal agencies and courts to resolve using rules of construction that favor persons with disabilities. 

The Act broadens the definition of many key ADA terms. The definition of “disability,” for example, is to be “construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of the Act.” As for the term “major life activities,” the Act rejects the definition employed in  Williams in favor of a non-exhaustive list of different major life activities, which include but are not limited to:

[C]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working . . . [and] the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 

Further, the phrase “substantially limits” must be “interpreted consistently with the findings and purposes” of the Act, and “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

The Act’s most significant change from the original ADA concerns the definition of the “regarded as” prong of the disability definition. Congress expressly rejected the Supreme Court’s interpretation of that term in  Sutton, as referenced above. Under the Act, an individual is now “regarded as” having an impairment “if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Thus, individuals will be covered based on actual or perceived impairments, regardless of whether these impairments limit or are perceived to limit a major life activity. 

Significantly, the “regarded as” prong does not apply to individuals with “transitory and minor” impairments. A “transitory” impairment is “an impairment with an actual or expected duration of 6 months or less.” The Act also indicates that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Therefore, episodic conditions such as diabetes should be assessed in their active states, rather than when the symptoms are less severe or controlled by treatment. The distinction between episodic and transitory appears to be that, with an episodic impairment, the active and less active or inactive states will recur, while with a transitory impairment, the active state ceases within “6 months or less.” If a transitory impairment lasts more than six months, it should be considered a covered condition.

Another change made by the Act is the specification that “a determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” Again, this rejects the ruling in the  Suttoncase. The Act lists such mitigating measures to include:

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. 

In conclusion, employers should be aware that the Act changes the definition of “disability” in a number of significant ways that favor persons with disabilities. In addition, the Act strongly encourages federal regulatory agencies and courts to interpret the ADA in a manner that will benefit as many people with disabilities as possible. Congress spent a great deal of time in the “Findings and Purposes” section of the Act criticizing the federal courts and, to a lesser extent, the EEOC, for their constricted interpretation of the original ADA. Congress has decided to compel those very federal courts to interpret ADA language in new and expansive ways. The future of the ADA may depend on the substance of the regulations promulgated by federal agencies, and the willingness of the courts to obey Congress’ directives for broad interpretation. Nonetheless, employers should expect that future disputes will no longer focus on whether an employee is disabled, but instead will concern whether the employer properly provided reasonable accommodations to its employee.

 – John J. Cloherty III