Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions.

This week, Congress reached an agreement on amending the Americans With Disabilities Act when both the House and Senate passed the ADA Amendments Act (ADAAA), which President Bush is expected to sign. The ADAAA becomes effective on January 1, 2009 and the EEOC has been tasked with drafting binding regulations interpreting and implementing the new provisions. The ADAAA is intended to reverse many pro-employer decisions by the Supreme Court (including Sutton v. United Air Lines and Toyota Manufacturing v. Williams) which some felt improperly narrowed the reach of the ADA. Among other things, the ADAAA changes existing law as follows:

1) Broadening the statutory definition of “major life activity” to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” and to include “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.”

2) Specifically requiring the definition of disability to be construed broadly. “The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act” and an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

3) The mitigation measures doctrine has been abrogated. Except for ordinary eyeglasses and contact lenses, a “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 (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.” This means that the ADA will now cover individuals with controlled chronic conditions, such as diabetes, and asthma, etc.

4) An individual can be regarded as having a disability if he or she proves only that s/he “has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment” regardless of whether “the impairment limits or is perceived to limit a major life activity.” In other words, the individual need only to be regarded as impaired to be regarded as disabled even though to actually be disabled, s/he would have to be substantially limited by the impairment. However, a person will not be treated as regarded as disabled if the impairment is “transitory and minor” (i.e., “an impairment with an actual or expected duration of 6 months or less.”). In other words, having a broken arm would not convert the person to disabled because the impairment is transitory.

5) Employers “need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual” who is only incorrectly regarded as disabled. In other words, only those who are actually disabled (rather than merely regarded as disabled) are entitled to reasonable accommodations.

6) Covered entities “shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.”

7) Reverse discrimination claims are prohibited. “Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.”

Employers can take some comfort that earlier provisions of the proposed ADAAA did not survive the Senate version, including versions that would have widened the definition of “disability” to include any mental or physical impairment (like the laws of some states, like Connecticut), a requirement to put the burden of proof on employers, and a per se list of disabilities.

Insomniacs can read the full ADAAA at http://thomas.loc.gov/cgi-bin/query/D?c110:3:./temp/~c110p47TJQ::

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.