On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the “ADAAA”). This legislation, the result of a bi-partisan effort, becomes effective on January 1, 2009, and significantly broadens the scope of coverage under the Americans with Disabilities Act (“ADA”).
In enacting the ADAAA, Congress overruled the Supreme Court’s decisions in Sutton v. United Airlines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, which, according to Congress, set “inappropriately high” standards for obtaining ADA protection. Congress concluded that as a result of these decisions, lower courts incorrectly denied coverage to many people with serious disabling impairments. As a result, the ADAAA makes it easier for individuals to prove the existence of a disability, and will result in many more people being considered “disabled” than under the current ADA:
- Courts may not consider “mitigating measures.” Under Sutton, courts were required to consider the ameliorative effects of mitigating measures, like medications or prosthetic devices, in determining whether an individual was disabled. For example, the Supreme Court held in Murphy v. United Parcel Service, Inc. that an individual whose high blood pressure was controlled by medication was not disabled under the ADA. With the exception of ordinary eyeglasses and contact lenses, under the ADAAA, courts must now evaluate individuals in their unmitigated states, as if the conditions were untreated, when deciding whether an individual is disabled.
- Individuals with impairments that are episodic or in remission may be protected. Under the ADAAA, a condition that would be disabling if it was active will be considered a disability even if the condition does not currently substantially limit a major life activity. For example, an individual whose cancer is in remission will be considered “disabled” under the new law.
- More individuals will be “regarded as” disabled. Previously, under Sutton, an individual claiming perceived disability discrimination was required to demonstrate that he or she was regarded not merely as having an impairment, but also as being substantially limited in a major life activity. The new legislation provides that an individual will now be “regarded as” having a disability if the individual shows that he or she is regarded as having an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. The ADAAA does provide, however, that employees whose actual or perceived impairments are “transitory and minor” will not be regarded as disabled. “Transitory” impairments are those with an actual or expected duration of 6 months or less; “minor” impairments are not defined. Further, the amended statute clarifies that employers are not obligated to provide a reasonable accommodation to individuals who are only “regarded as” disabled.
- “Major Life Activities” are clarified. The ADAAA provides an illustrative but non-exhaustive list of major life activities, including many previously contained in the regulations issued by the Equal Employment Opportunity Commission (“EEOC”). The ADAAA also expands the definition of “major life activity” to include the proper functioning of major bodily functions such as the immune system, cell growth, neurological, and reproductive systems.
- The EEOC must revise its regulations. The ADAAA requires the EEOC to revise its regulations defining “substantially limited” to comport with the revised statute.
Impact on Employers
The effect of the ADAAA will be to significantly increase the number of employees protected as disabled under federal law. Because the new law greatly expands the conditions that qualify as disabilities, employers need to consider a broader range of impairments when determining whether an employee is “disabled” and entitled to an accommodation of that disability. Employers should immediately and carefully review all policies and practices related to accommodation requests, and ensure that employees responsible for implementing those policies are fully aware of the broadened scope of the ADA.
The nature of ADA litigation will also change significantly under the ADAAA. In light of Congress’s direction that the inquiry concerning whether one is disabled under the ADA “should not demand extensive analysis,” it will become far more difficult to have cases dismissed on summary judgment on the grounds that an individual does not satisfy that threshold issue. In addition, the ranks of individuals claiming to be “regarded as” disabled will swell because employees will no longer be required to demonstrate that they were perceived as being substantially limited in a major life activity. We anticipate that the focus of most cases will turn to issues concerning the essential functions of the employee’s job, the employee’s ability to perform those functions, and the employer’s compliance with its obligations to accommodate the employee’s disability.