• Major Expansion of the ADA's Protections
  • October 19, 2008
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • A closer look at the ADA Amendments Act of 2008

    New legislation to amend the Americans with Disabilities Act (ADA) has just been signed into law by President Bush and will take effect on January 1, 2009. The legislation is an attempt by Congress to respond to several Supreme Court decisions that have limited the ability of disabled persons to recover in discrimination lawsuits under the ADA. Although the final impact of the legislation will not be known until many issues have been litigated and defined by the courts, the following changes are certain.

    The Definition of Disability Will Be Broadened

    Under the original ADA, ‘disability’ is defined as a physical or mental impairment that substantially limits one or more of the major life activities of the individual. Although the new law does not change that definition, it does direct the EEOC to interpret the “substantially limits” language more liberally than it has in the recent past. Since the aforementioned Supreme Court decisions in the late ‘90’s, the EEOC and federal district courts have applied a very narrow reading to this “substantially limits” standard. Under the new ADA, “substantially limits” will be broadened to cover more conditions, including many that have been excluded by court decisions over the past decade.

    Major Life Activities Will Be Expanded

    The former ADA included little statutory guidance as to what constituted a major life activity for purposes of determining whether an individual was disabled. The EEOC issued a list of major life activities, but many courts refused to adopt the list or narrowed the activities included. The new amendments to the ADA contain an expansive list of life activities, including: sleeping, reading, thinking, eating, concentrating, communicating, working, performing manual tasks, caring for oneself, standing, lifting, bending, seeing, hearing, speaking, learning, walking, and breathing. Also included are major bodily functions such as digestive, bowel, bladder, neurological, respiratory, circulatory, endocrine, and reproductive functions. Coupled with the expansion of the definition of disability, the expansion of what is a major life activity should drastically increase the scope and coverage of the ADA.

    Episodic or Dormant Impairments Are Disabilities

    The act makes clear that an episodic impairment, or one in remission, is still a disability if it would substantially limit a major life activity when active. An example includes individuals with diseases that were once active but are now in remission—they will now be considered disabled under the ADA.

    Mitigating Measures Will Not Be Considered

    The effects of mitigating measures will no longer be considered in determining whether an impairment substantially limits a major life activity. Under the former interpretation of the ADA, if, through the assistance of medications or objects such as hearing aids or artificial limbs, an individual’s condition improved to the point of no longer substantially limiting a major life activity, that individual would no longer be considered disabled. Now, whether an individual is disabled will be determined by their condition without regard to the use of these mitigating measures (other than eyeglasses and contact lenses). So, even where the individual suffers from no limitations due to the use of a mitigating measure, he or she will still be considered disabled if they could be impaired without the mitigating measure.

    The "Regarded As" Definition Will Be Changed

    The new act also lowers the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, an individual claiming he or she was “regarded as” having a disability had to prove either that the employer mistakenly regarded the individual as having an impairment that substantially limited a major life activity or the employer mistakenly believed that an actual impairment substantially limited the individual (when in fact it did not). The amendments to the ADA make an employer liable under a “regarded as” theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. This significantly eases the evidentiary proof needed to establish a “regarded as” claim under the ADA.

    There is a bit of good news for employers, however, when dealing with those claiming they are regarded as disabled. The new law clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. It also clarifies that employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts of appeals were previously split.

    Critics of the bill claim it does not adequately define the changes in interpretation of the key parts of the ADA that it wishes to bring about. They argue courts will be left largely without guidance to determine the scope of these changes. While some would debate this point, it is certain there will be an increase in litigation in the outset, as courts will be called upon to define the limits of the new act. It also seems likely that the changes will allow more individuals to successfully bring discrimination claims in federal district court. Additionally, more accommodations will be required to enable a greater number of newly considered disabled individuals to perform their jobs. Needless to say, this raises the burden on employers to comply with the revised ADA.

    More updates will follow as decisions are reported and the definitions of this act are resolved into more tangible rules for employment practices.