The ADA Amendments Act of 2008 (ADAAA) promises to dramatically change the disability law landscape. Encouraged by the onslaught of lower court decisions ruling that numerous conditions were not disabilities under the existing Americans with Disabilities Act of 1990 (ADA), Congress emphatically engaged in an extensive bipartisan effort to enact the ADAAA.
On June 25, 2008, the House of Representatives passed H.R. 3195, the precursor to the ADAAA. On Sept. 11, 2008, the Senate followed suit by unanimously passing the ADAAA, a bill that differs only slightly from H.R. 3195 by offering even greater protection to individuals with disabilities. The House hurriedly passed the ADAAA Sept. 17, 2008. As expected, President Bush signed the act into law Sept. 25, 2008.
The ADAAA significantly broadens the definition of disability and lowers the standard for determining whether an impairment substantially limits an individual's major life activities. The act took effect Jan. 1, so you should prepare for the projected landslide of disability claims.
The ADA definition
The ADA was intended to protect individuals who experience discrimination because of a current, past or perceived disability. For this reason, the ADA provides a three-pronged definition of the term "disability."
The ADA states that with respect to an individual, disability means:
Temporary, nonchronic impairments of short duration with few or no long-term effects are excluded from this definition of disability. As a general rule, an impairment should be considered short-term if it lasts less than three months. Some common examples of nondisabilities are broken limbs, the flu and appendicitis.
The ADAAA defines and clarifies three key phrases contained in the ADA definition of disability. Namely, the ADAAA clarifies the meanings of "substantially limits," "major life activities" and "regarded as." Furthermore, the ADAAA includes several standards that make it easier for individuals to qualify as disabled under the ADA.
A broad interpretation
The ADAAA rejects the demanding standard for individuals to prove a disability articulated by the U.S. Supreme Court in Toyota Motor Manufacturing Kentucky Inc. v. Williams.
In this case, the court held that a plaintiff with carpal tunnel syndrome was not disabled within the ADA's meaning because she was not substantially limited in performing manual tasks even though she could not drive long distances, dance, sweep or perform several other tasks.
The court reasoned that because the plaintiff was able to tend to her personal hygiene and perform household chores, she did not satisfy the strict definition of disabled provided in the ADA.
However, the ADAAA expressly rejects this strict standard and provides that the definition of disability should be construed to the maximum extent possible. Therefore, the ADAAA invalidates the Supreme Court's ruling in Toyota Motor Manufacturing Kentucky Inc. v. Williams.
Episodic impairments
Before the ADAAA's enactment, courts were split as to whether the ADA covered impairments that were episodic or in remission. As a result, conditions such as epilepsy and similar seizure disorders were routinely excluded from ADA protection. Similarly, cancer survivors who experienced some cancer-related difficulties often were deemed not disabled if the cancer was in remission.
The ADAAA clarifies that an episodic impairment or one that is in remission is a disability if it substantially limits a major life activity when active. Therefore, individuals who suffer from seizures will be considered disabled as long as the occurrence of seizures substantially limits them from performing a major life activity. Because seizures often are debilitating, this standard will almost always be satisfied.
Redefining "substantially limits"
The ADA requires an impairment to substantially limit a major life activity for an individual to qualify as disabled. The requirement is satisfied if an impairment severely restricts a person's ability to perform a major life activity as compared with the general population or the impairment makes a person unable to perform a major life activity.
Courts have widely applied three factors to aid in interpreting the "substantially limits" requirement: the impairment's nature and severity, duration, and long- or short-term effects.
Generally, courts have employed the Supreme Court's reasoning in Toyota Motor Manufacturing Kentucky Inc. v. Williams to interpret "substantially limits" as a strict and difficult standard for plaintiffs to meet. As a result, numerous impairments that generally are treated as disabilities have been excluded from ADA protection.
For example, courts have denied protection to individuals suffering from mental retardation, epilepsy, diabetes, bipolar disorder, hearing impairments, back injuries, monocular vision (vision in only one eye), post-traumatic stress disorder, depression, heart disease, HIV, asthma, cancer, multiple sclerosis and many other clearly debilitating conditions.
In overturning the Supreme Court's interpretation of the ADA, the ADAAA rejects any attempt to interpret "substantially limits" as a demanding standard. The ADAAA notes that courts should not engage in an extensive analysis when applying the requirement. Furthermore, the ADAAA explicitly rejects Equal Employment Opportunity Commission (EEOC) regulations that define the term as "significantly restricts."
In fact, the Senate originally refused to pass H.R. 3195 (the first version of the ADAAA) because it substituted "substantially limits" with "materially restricts." In essence, the ADAAA creates a lower standard for plaintiffs by returning to the original interpretation.
Importantly, the ADAAA also clarifies that an impairment that substantially limits one major life activity need not limit others. As a result, courts no longer can deny protection to individuals who are substantially limited in only one major life activity.
Considering mitigating measures
According to the Supreme Court's decision in Sutton v. United Airlines Inc., an employee is not disabled under the ADA if mitigating measures correct or improve the impairment.
In this case, plaintiffs sued United Airlines under the ADA for refusing to hire them as pilots because of their inadequate vision. The Supreme Court agreed with United Airlines and held that the plaintiffs were not disabled because they were not substantially limited in a major life activity when they wore corrective lenses. The reasoning was that those individuals were disabled only because they chose not to correct their impairment. As a result, courts frequently denied protection to individuals who suffered from correctable conditions.
For example, courts denied coverage to individuals who suffered from insulin-dependent diabetes because they could correct the diabetes by taking insulin. Similarly, courts denied protection to individuals who suffered from monocular vision because most such individuals had adjusted their behaviors so effectively that they could live their lives as comfortably as people with normal vision.
According to Congress, allowing courts to consider mitigating measures forced individuals with disabilities to choose between enforcing their civil rights and addressing the problems caused by their disabilities.
The ADAAA overturns the Supreme Court's decision in Sutton v. United Airlines Inc. and prohibits consideration of mitigating measures, which generally include medication, equipment, devices, prosthetics, hearing aids, mobility devices, oxygen equipment, assistive technologies such as magnified computer screens, behavior adjustments, and other aids and services.
However, the ADAAA contains an exception that permits the consideration of one type of mitigating measure: ordinary eyeglasses and contact lenses. If such an exception had not been included in the ADAAA, anyone who wears eyeglasses or contact lenses would have potentially qualified as disabled.
Major bodily functions
The ADA requires plaintiffs to articulate the major life activity affected by their impairment.
In Toyota Motor Manufacturing Kentucky Inc. v. Williams, the Supreme Court defined "major life activities" as those activities of central importance to daily life.
The ADA does not provide a list of major life activities. However, EEOC regulations and lower court decisions have resulted in a lengthy list of major life activities. The ADAAA provides an extensive list of these widely accepted major life activities that includes caring for oneself, performing manual tasks, walking, standing, lifting, breathing, seeing, hearing, eating, sleeping, speaking, learning, concentrating, thinking and working (but only where the disability affects a broad range or class of jobs). The ADAAA further includes activities that have been routinely excluded by the EEOC, such as reading, bending and communicating.
Importantly, the ADAAA expands the list of major life activities to include major bodily functions such as immune system functions; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. This represents a significant expansion of the scope of major life activities and will allow many more individuals suffering from myriad conditions to qualify as disabled under the ADA.
It is worth noting that though the ADAAA does not include other commonly recognized activities such as sitting, engaging in sexual relations or safe reproduction, these activities might be protected as major bodily functions.
Despite the controversy, the ADAAA does not specifically include several other common activities as major life activities that previously had been excluded because they were not deemed central to most people's daily lives. These activities include, for instance, driving, grocery shopping, sweeping and playing sports. Such activities likely will remain excluded under the ADAAA.
Expanding "regarded as"
The ADA protects individuals who are regarded as disabled by their employers. This includes individuals who have impairments that do not substantially limit a major life activity but are believed by their employers to do so. An example would be a person with high blood pressure controlled by medication who is believed by his employer to be disabled.
This also includes individuals who have impairments that substantially limit a major life activity but only as a result of the attitudes of others, such as a person with Tourette's syndrome who has an involuntary tic and is treated by others as disabled.
Additionally, this includes a person who has absolutely no impairment but is treated by the employer as disabled for some other reason, such as a gay employee whom his or her employer mistakenly believes has AIDS.
Before the ADAAA's enactment, the focus in "regarded as" cases was always on the employer's perceptions. Furthermore, the requirement that an employer regard an employee as substantially limited in a major life activity was almost impossible to prove. As a result, such cases were difficult for plaintiffs to make.
The ADAAA clarifies that an individual could meet the definition of being regarded as disabled even if the employer does not perceive the impairment as limiting a major life activity. But the perceived impairment cannot be "transitory and minor," which is defined as having an actual or expected duration of six months or less. Furthermore, the ADAAA shifts the focus away from the employer's perceptions to whether there was unequal treatment.
Finally, the ADAAA clarifies that individuals covered solely by the "regarded as" prong are not entitled to reasonable accommodations. Overall, the "regarded as" prong has been greatly broadened and is expected to give rise to numerous claims.
Best practices
What should you do to make sure you comply with the ADAAA? Consider the following:
The ADAAA's effects
By broadening the ADA's definition of disability and lowering its standards, the ADAAA undoubtedly will make it easier for individuals to garner coverage and protection under the ADA. Unsuspecting employers can expect to see a dramatic increase in employees' requests for workplace accommodations and a consequential spike in litigation. Take the time now to determine the effect the ADAAA will have on your workplace so you will be prepared when confronted with a disability issue.
Jason C. Kim is a partner and Gray A. Mateo is an associate with the labor and employment practice group of the Chicago-based law firm Neal, Gerber & Eisenberg LLP.
COMMENTS
Be the first to comment. Please log in to leave a comment.