In 1990, the Americans with Disabilities Act (“ADA”) was signed into law with great fanfare. The law prohibits discrimination against qualified individuals with disabilities and requires employers to make reasonable accommodations that will allow such individuals to perform the essential functions of their jobs. Supporters had high hopes that the ADA would open doors in the workforce that were previously closed to disabled individuals.

However, critics have complained for years that the United States Supreme Court has so limited the scope of protection provided to workers with disabilities that the ADA has failed to live up to its intended purpose. Pivotal, employer-friendly cases, including Sutton v. United Air Lines, Inc. (holding that the ameliorative effects of mitigating measures may be considered in determining whether an impairment substantially limits a major life activity) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (holding that an individual is substantially limited in a major life activity under the ADA only if he or she is prevented or severely restricted from doing activities that are of “central importance to most people’s daily lives”), have narrowed the definition of “disability” such that most individuals’ claims fail in the initial stages of litigation, either because they are not considered disabled enough to qualify for coverage under the law or because they are found to be too disabled to be qualified for employment. Congress has finally responded to these decisions, passing the ADA Amendments Act of 2008 (the “Act”) on September 17, 2008. When this legislation, which President Bush is expected to sign, takes effect on January 1, 2009, it will change the face of disability discrimination law in the U.S.

The ADA Amendments Act

The Act makes several major changes to the ADA that serve to expand coverage to many individuals who were previously not protected from workplace discrimination because of disability. Although an earlier version of this legislation would have amended the definition of disability from “a physical or mental impairment that substantially limits one or more major life activities” to merely “a physical or mental impairment,” the Act as passed by Congress leaves the current definition intact. However, the Act specifically instructs courts to adopt a broad standard when determining whether an individual is considered disabled. In addition, the Act adds definitions for several key terms that are currently undefined by the ADA. The term “major life activities” is defined 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.” The definition of the term also includes the operation of any major body function, including functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The ADA provides protection not only to individuals with an impairment that substantially limits a major life activity, but also to individuals with a record of such an impairment or who are regarded as having such an impairment. The Act provides a definition for the previously undefined term, “regarded as having such an impairment.” An individual falls under this prong 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.” However, the Act qualifies that an individual with an impairment that is “transitory and minor,” defined as having an actual or expected duration of six months or less, does not fall under this definition. Further, the Act clarifies that employees who are “regarded as” disabled are not entitled to receive reasonable accommodations.

The Act prohibits consideration of the impact of any mitigating measures the individual may be using or whether any impairment manifestations are episodic, in remission, or latent when determining whether an individual has a qualifying impairment. Ordinary eyeglasses and contact lenses are not included in the definition of “mitigating measures.”

A previous version of the legislation defined the term “substantially limits” to mean “materially restricts.” However, the version passed by Congress eliminated that definition, directing that the term “substantially limits” shall be “interpreted consistently with the findings and purposes” of the Act.

Broad Implications for Employers

The Act represents one of the most significant changes to employment law in the last ten years. The provisions of the Act prohibiting the consideration of “mitigating measures” will allow individuals who use, for example, medications, artificial limbs, or hearing aids to qualify for protection under the ADA, even though those measures overcome, for practical purposes, the limiting effects of an impairment. Similarly, individuals with impairments that are episodic or in remission, such as epilepsy, diabetes, or cancer, will not be barred from coverage under the Act. More individuals will be able to qualify for protection under the “regarded as” prong of the ADA because they must show only that an employer regarded them as having an impairment, rather than the more difficult task of showing that the employer regarded them as being substantially limited in a major life activity.

Further, employers are certain to see an increase in the number of filings of employment discrimination suits based on disability, as well as a large jump in the number of those cases that go to trial. While employers could previously focus on defeating employees’ claims early in litigation by showing that an employee did not qualify for coverage under the ADA, the new standards adopted by the Act will mean that more cases will make it past that stage, forcing employers to further explore defenses to alleged discriminatory actions, such as the existence of a legitimate and nondiscriminatory reason for the employment action at issue.

Employers should immediately prepare for the changes in the ADA by retraining human resources personnel and supervisors and planning to provide accommodations for a larger number of employees with disabilities. While addressing the new challenges presented by the Act will be time-consuming and costly, failure to comply will certainly expose employers to unprecedented liability.