The Senate passed S. 3406, the ADA Amendments Act of 2008 (the ADA Amendments), Sept. 11, 2008. The Senate bill is largely identical to the House version of the bill, H.R. 3195, that was passed June 25, 2008, by a vote of 402 to 17. If enacted, the ADA Amendments would greatly expand the scope of the Americans with Disabilities Act of 1990 (ADA). The primary amendments are as follows:

Substantially Limits: “Disability” is currently defined as an impairment that substantially limits a major life activity, a record of such impairment or being regarded as having such impairment. There is no statutory definition of “substantially limits,” but the U.S. Supreme Court in Toyota Motor Mf. KY, Inc. v. Williams, held that an individual is substantially limited if he or she has “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The House bill rejects the holding of Toyota and specifically defines “substantially limits” as “materially restricts.” Although it is clear that the House intends the “materially restricts” standard to be less restrictive than that of Toyota, the bill provides no interpretive guidance for the new standard. H.R. 3195’s “materially restricts” standard has already been criticized as vague. The Senate bill departs from the House strategy and merely states that the term “substantially limits” should be construed broadly, consistent with the findings and purposes of the ADA Amendments.

Mitigating Measures: The ADA Amendments specifically overturn Sutton v. United Airlines, Inc., in which the Supreme Court held that whether an individual is disabled should be evaluated by taking into account any mitigating measures. Interestingly, the bill carves out an exception for eyeglasses and contact lenses, which were the mitigating measures at issue in Sutton.

Regarded as Disabled: The ADA Amendments announce two points of interest with respect to the “regarded as” prong of the definition of a disability. First, an individual may be “regarded as” disabled regardless of whether the impairment limits or is perceived to limit a major life activity. Second, in a move that is surprisingly more favorable to employers, the ADA Amendments would resolve a split among the circuits, clarifying that individuals who meet the definition of disability under the “regarded as” prong are not entitled to reasonable accommodation.

Intermittent Conditions: Although most courts have held that intermittent or episodic conditions are not disabilities, the ADA Amendments specifically state that they are if, when active, they substantially limit a major life activity.

The Senate bill has been sent back to the House for consideration and vote. The ADA Amendments enjoy broad-based support, including from business groups and disability rights groups alike, as well as bipartisan support in Congress. President Bush is expected to sign the final version of the bill into law.