The Americans with Disabilities Amendments Act of 2008 (“ADAAA” or the “Amendments”) was signed by President George W. Bush on September 25, 2008. The Amendments represent major changes to the protections afforded under the Americans with Disabilities Act (“ADA”). Employers should be aware of these changes prior to the Amendments becoming effective on January 1, 2009.
The ADAAA was passed largely in response to several Supreme Court decisions of the past decade which narrowed the scope of protection offered by the ADA, especially with respect to those individuals covered by the ADA. In the “Findings and Purposes” section of the ADAAA, Congress explicitly rejects several of these holdings as well as the reasoning and interpretations made by the Court in reaching those decisions. For instance, the ADAAA rejects the holdings of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, and Sutton v. United Air Lines, Inc. In Toyota Motor, the Court ruled that terms in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled.”1 Critics of this holding believed that the Supreme Court’s reasoning ran counter to longstanding cannons of construction that remedial statutes, such as the ADA, should be interpreted broadly.
In response to these Supreme Court decisions, the ADAAA sets forth rules of construction, including the mandate that “the definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”
The ADAAA maintains the three-prong definition that was established by the ADA. As such, under the Amendments, the term “disability” means, with respect to an individual:
(a) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(b) a record of such an impairment; or
(c) being regarded as having such an impairment…
Although the basic definition remains the same, the ADAAA significantly changes the scope of coverage of individuals who are considered to have a disability. Most of these changes broaden the coverage of the ADA, especially with regard to judicial interpretation of the ADA.
Rejection of the “Mitigating Measures” Approach Adopted by the Supreme Court
In a series of Supreme Court decisions in the late 1990s, the Court held that the question of whether an individual has a disability must be determined with reference to any mitigating or corrective measures with which the individual is able to offset the effects of a physical or mental impairment. In Sutton v. United Airlines, Inc., the plaintiff was legally blind but had 20/20 vision when using eyeglasses. The Court held that the plaintiff’s use of eyeglasses should be considered in judging whether plaintiff “was ‘substantially limited’ in a major life activity and thus ‘disabled’ under the ADA.” The Supreme Court and the lower courts have applied the Sutton holding to other mitigating measures, both artificial as well as measures undertaken, whether consciously or not, within the human body’s own systems.2
The ADAAA replaces the mitigating measures rule adopted by the Supreme Court with a standard that “whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” The ADAAA defines mitigating measures as including both artificial measures such as medicine, medical supplies, and prosthetics, as well as learned behavioral or adaptive neurological modifications.
One major exception to this new approach involves eyeglasses and contact lenses. The ADAAA states that “the ameliorative effects of the mitigating measures of ordinary eyeglasses and contact lenses shall be considered in determining whether an individual has an impairment that substantially limits a major life activity.” Thus, as the Court held in Sutton, a plaintiff’s use of eyeglasses should still be considered in judging whether the plaintiff is “substantially limited” in a major life activity. However, a plaintiff’s use of other mitigating measures cannot be considered by the courts.
Impairments that are Episodic in Nature or in Remission
A second major change made by the ADAAA is that individuals who have impairments which are episodic in nature or which are in remission are now covered under the ADA. Previously, the Supreme Court had repeatedly held that courts should not hypothesize about the potential severity of impairments or how impaired the individual is when the impairment is at its worst.3
In rejecting these prior holdings, the ADAAA states that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” By extending the coverage of the ADA to employees whose impairments are episodic or are in remission, Congress has broadened the definition of disability under the ADA.
Major Life Activities
Both the ADA and the Amendments state that an individual is considered to have a disability in situations where a “physical or mental impairment … substantially limits one or more major life activities of such individual.” (emphasis added). The previous version of the ADA did not define what constituted “major life activities,” and the task fell to agencies such as the EEOC to define the term. Instead of defining the term, the EEOC created a non-exhaustive illustrative list of major life activities. Specifically the EEOC listed “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working” as examples of “major life activities.” Additionally, the Supreme Court has somewhat narrowed the definition of “major life activities” by holding that these are “activities that are of central importance to most people’s daily lives.”
The ADAAA rejects the holding of the Supreme Court that “major life activities” are limited to ones of “central importance to most people’s daily lives.” Instead of opting to provide a definition of the term, however, the ADAAA follows the example set by the EEOC and provides a non-exhaustive list of major activities. This list, which includes additions to the EEOC’s previous list, consists of “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Moreover, the Amendments make clear that the term “major life activities” also includes the operation of major bodily functions, including “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
Changes to the “Regarded as” Prong
The ADAAA makes major changes to the circumstances under which an individual is considered to have a disability under the “regarded as” prong. Again, these changes have the potential to expand the scope of coverage of individuals considered to have a disability. Under the ADAAA, an individual is regarded as having an impairment if the individual establishes they have been subjected to an action prohibited under the 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.” Prior to the Amendments, the “regarded as” standard was linked to an impairment that substantially limited a major life activity.
The Amendments focus on an employer’s motivation for an action, regardless of the severity of the individual’s impairment. As an example, if an employee has an impairment and can show that the impairment motivated the employer’s adverse action, the employee is covered under the “regarded as” prong, regardless of how limiting the impairment actually is. Similarly, if an employee can show that the employer perceived the employee as having an impairment, regardless of whether this perception was correct, and that this perception motivated the adverse action, the employee can claim coverage under the “regarded as” prong, irrespective of how limiting the employer perceives the impairment to be.
No Accommodations Required for Individuals Who Are Regarded as Having a Disability
Prior to the ADAAA’s enactment, the federal courts were split over the question of whether an employer must provide reasonable accommodations to individuals whom they merely regard as having a disability. For instance, in Williams v. Philadelphia Housing Authority Police Department, the Third Circuit had ruled that employees who are “regarded as” disabled are entitled to reasonable accommodations in the same way as those who are actually disabled. The ADAAA takes the side of employers, providing that employers “need not provide reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets” the “regarded as” prong.
Is the ADAAA Retroactive?
The ADAAA is silent on the issue of whether the provisions are retroactive. Typically statutes are not retroactive unless retroactivity is required by the precise language of the statute or by necessary implication. The language of the ADAAA states that they are effective January 1, 2009, and there is no language requiring they be applied retroactively. However, the ADAAA states that when the original act was enacted in 1990, Congress intended to provide broad coverage that the courts have erroneously interpreted as more narrow. A potential plaintiff may use the language in the “Findings and Purposes” section of the ADAAA to argue that the statute is not so much an amendment as it is a clarification of a statute that has been in place since 1990. It remains to be seen whether this approach would be successful, but employers should be mindful of the possibility.