President Bush recently signed the ADA Amendments Act of 2008 into law. The new law, effective January 1, 2009, reinstates the ADA's "broad scope of protection" and overturns key United States Supreme Court caselaw which Congress believed had eroded the scope of protection the ADA was intended to provide. Specifically, the new law:

  • Rejects the requirement set forth by the Supreme Court's 1999 Sutton v. United Air Lines, Inc. case and its related cases, that an impairment must be evaluated with reference to the ameliorative effects of mitigating measures such as medication, hearing aids, prosthetic devices, etc.;
  • Rejects the "demanding standard" established by the Supreme Court's 2002 Toyota Motor Mfg., Ky., Inc. v. Williams decision that an impairment must prevent or severely restrict the individual from performing activities that are of central importance to most people's daily lives;
  • Rejects the EEOC's narrow definition of "substantially limits" one or more major life activities and directs the EEOC to issue revised regulations to be consistent with the new law; and
  • Broadens certain important definitions in the ADA, including "major life activities" and "regarded as" having an impairment.

These changes will make it easier for individuals with physical or mental impairments to qualify as "disabled" under the ADA, and will make it difficult for employers to dismiss ADA claims at an early litigation stage.

Although most of the changes to the ADA are consistent with the broad requirements of California's FEHA, the ADA will exceed the protections afforded by FEHA in certain respects. For example, the ADA's definition of "regarded as" disabled will be even broader than FEHA's, and will make it easier for plaintiffs to assert protected status. Employers subject to both the ADA and FEHA must carefully evaluate disability issues and accommodation requests in order to ensure compliance with both laws.