• The ADA Amendments Act of 2008 Expands Scope of Protection under the ADA
  • September 28, 2008 | Authors: Danielle E. Needham; Gary L. Ingram
  • Law Firms: Jackson Walker L.L.P. - Fort Worth Office; Jackson Walker L.L.P. - Dallas Office
  • In response to a series of court decisions which were perceived by proponents of the Americans With Disabilities Act of 1990 (ADA) as interpreting the ADA too narrowly, Congress has passed the ADA Amendments Act of 2008 (ADAAA). The avowed purpose of the ADAAA is to broaden the scope of the ADA's coverage. Once signed into law by President Bush — which is expected within the next few weeks — the ADAAA would take effect on January 1, 2009. Here are some of the key provisions:

    Definition of Disability

    The definition of "disability" will be construed more broadly than reflected in the Supreme Court's decision in Toyota Motor Manufacturing Co. of Kentucky v. Williams. After that decision, the Equal Employment Opportunity Commission (EEOC) issued regulations which applied a rigorous "substantially limits major life activities" test for proving disabilities. The ADAAA specifically directs the EEOC to promulgate a less-restrictive regulatory interpretation of the "substantially limits" language. Under the ADAAA amendments, an impairment which substantially limits one major life activity need not limit other major life activities in order to be considered a disability. Likewise, an impairment that is episodic or in remission may qualify as a disability if it would substantially limit a major life activity when active.

    Mitigating Measures

    In Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson's v. Kirkingburg, the Supreme Court held that "mitigating measures," such as insulin to control diabetes, must be considered in determining whether an impairment qualifies as a disability under the ADA. The ADAAA expressly rejects this requirement and prohibits consideration of the ameliorative effects of mitigating measures. Among others, mitigating measures would include medication, medical supplies, low-vision devices (other than ordinary eyeglasses or contact lenses), prosthetic limbs and devices, hearing aids, mobility devices, oxygen therapy equipment, reasonable accommodations or auxiliary aids and services, or learned behavioral or adaptive neurological modifications.

    Major Life Activities

    Unlike the ADAAA amendments, the ADA was silent regarding what type of activities constituted "major life activities." The amendments specifically provide that the term "major life activities" as used in the ADA's definition of "disability" includes, but is not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Moreover, a "major life activity" also will include functions of the immune system and functions of the digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.

    "Regarded As" Disabled

    Under the ADA, those who are "regarded as" having an impairment which substantially limits a major life activity are covered by the Act. The ADAAA clarifies that an individual can satisfy the "regarded as" test by demonstrating that "he or she has been subjected to an action prohibited under [the ADA] 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." However, individuals who are "regarded as" having a minor or transitory impairment with an actual or expected duration of six months or less do not qualify for protection under the ADA.

    Reverse Discrimination Claims

    The ADAAA specifically prohibits "reverse discrimination" claims, i.e., a non-disabled employee may not claim that an employer who accommodated a disabled employee engaged in disparate treatment. This means that an individual without a disability cannot maintain an actionable claim under the ADA by alleging that the individual was subject to discrimination because of the individual's lack of disability.

    The ADAAA undoubtedly will broaden the scope of protections afforded to employees under the ADA. Determining whether an individual with an impairment is covered by the ADA and, thus, entitled to a reasonable accommodation at work, will require more careful consideration. Employers should proceed with caution until the EEOC's revised regulations are issued and the ADAAA amendments are further explained and interpreted by the courts. When contemplating decisions affecting impaired employees, employers should consult with counsel who have expertise in the ADA and the recent ADAAA amendments.