On September 25, 2008, President Bush signed significant amendments to the Americans with Disabilities Act (ADA) into law. The ADA Amendments Act of 2008 will likely increase the number of disability discrimination lawsuits filed against employers because it expands the number of people who fall under the ADA's definition of "disabled." To that end, the Act:

  • Makes it easier for impairments to qualify as "disabilities" by implementing a less demanding standard for determining whether the impairment "substantially limits" a major life activity.
  • Prohibits courts from considering most "mitigating measures," like medications, hearing aids and other assistive devices, when deciding whether someone is "disabled" under the ADA. For example, individuals with certain impairments, such as cancer, AIDS and diabetes, will now generally qualify as "disabled." Previously, many courts found that those individuals were not "disabled" if medications and other treatment limited the impairment's affect on their daily lives.
  • Provides that an impairment that is episodic or in remission qualifies as a disability if it would substantially limit a major life activity when active. This change infuses a certain amount of guesswork into the ADA process by requiring courts and employers to speculate about the potential effect of a condition that presently does not affect employees.
  • Enables persons whom employers perceive, rightly or wrongly, as having a disability to sue for discrimination regardless of how significant the employer believes the impairment is. Under the old standard, individuals with perceived disabilities had to show that their employer believed the impairment substantially limited a major life activity. Now, if a plaintiff can show that an employer perceived him or her as disabled, and that perception motivated an adverse employment action, the plaintiff can prevail regardless of how severe the employer perceived the impairment to be.

Although the Act is principally aimed at expanding the number of persons who qualify as "disabled," it does clarify that employers do not need to provide "reasonable accommodations" to employees who do not have actual disabilities, but whom the employer perceives as being disabled. Even so, because many more people will qualify as "disabled" under the new measures, the number of people entitled to ask an employer to accommodate a disability will increase.

The Act does not become effective until January 1, 2009, but does not define what affect, if any, it will have on current lawsuits. That issue promises to be a major source of contention for litigants in the months ahead.

To assist employers with preparing for these changes, Baker & Daniels is hosting a series of seminars in Indianapolis, South Bend and Fort Wayne on November 6 and 7. Invitations and the detailed agenda will be distributed in early October.

In the meantime, employers should review policies and procedures to ensure that they comply with the Act and provide training to supervisors on how to handle requests for disability accommodations, including how to address the likely increase in the number of such requests. Finally, employers should ensure that decision-makers understand how broad the definition of "disability" is under the Act and especially how lawsuits based on the new definition of a "perceived" disability present a potentially significant source of liability.