The Americans with Disabilities Act of 1990 (“ADA”), which covers employers with fifteen (15) or more employees, prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, advancement, compensation, job training, and other terms, conditions and privileges of employment. On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the “Act”), which makes important changes to the definition of the term “disability” in the ADA by rejecting the holdings of several Supreme Court decisions and sections of the Equal Employment Opportunity Commission’s (“EEOC”) regulations. The Act is effective January 1, 2009.

Citing four Supreme Court cases in the Act, Congress found that these Supreme Court decisions narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protections for many individuals who Congress intended to protect. As a result of these decisions, the lower courts incorrectly found that employees with a range of substantially limiting impairments were not individuals with disabilities.

Although the Act retains the ADA’s definitions of disability as to either (a) a physical or mental impairment that substantially limits one or major life activities, (b) having a record of such impairment, or (c) being regarded as having such an impairment, the amendments change the way these statutory terms are to be interpreted. Among other changes, the Act (1) directs the EEOC to revise that portion of the regulations defining the term “substantially limits,” (2) expands the definition of major life activities by including a non-exhaustive list of major life activities that were not previously recognized by the EEOC and a non-exhaustive list of bodily functions, and (3) emphasizes that the definition of disability should be interpreted broadly. Currently, the EEOC is evaluating the impact of these changes on its enforcement guidance and other publications addressing the ADA.