Employers should be prepared to confront more disability-related claims and lawsuits in the coming years. In 2009 the Equal Employment Opportunity Commission (EEOC) received more charges based on violations of the American Disabilities Act and filed more American Disabilities Act-related actions than in the previous year. This trend promises to continue owing to Congress's passage of the employee-friendly American Disabilities Act Amendments Act, which became effective in January 2009.

Displeased with what it believed to be the Supreme Court's overly restrictive interpretation of which individuals were protected under the American Disabilities Act, Congress passed the amendments act with the purpose of "reinstating a broad scope of protection to be available" under the American Disabilities Act. The amendments act expands the definition of 'disability' under the American Disabilities Act and the Rehabilitation Act. Under the amendments act, the EEOC is required to rewrite its regulations to reflect the changes to the American Disabilities Act. The EEOC published its proposed rules in September 2009 and plans to announce the final regulations in mid-2010.

The American Disabilities Act defines 'disability' as:

  • a physical or mental impairment that substantially limits one or more of an individual's major life activities;
  • a record of such an impairment; or
  • being regarded as having such an impairment.

The amendments act broadens the interpretation of 'substantially limits', 'major life activities' and 'regarded as'. Additionally, the amendments act provides that the use of mitigating measures (eg, medications, medical supplies, appliances, prosthetics and hearing aids) may not be considered when determining whether someone is disabled – meaning that individuals should be evaluated as if they do not have access to these measures (an exception is the use of eyeglasses or contact lenses). While the overall number of charges filed with the EEOC decreased in 2009, the number of disability charges increased, comprising approximately 23% of charges filed with the agency. Meanwhile, in 2009 the EEOC filed over twice as many actions asserting American Disabilities Act claims in 2008.

Due to this increase in claims and focus by the EEOC, employers that previously relied on a restrictive definition of what constitutes a disability should revise their policies. If an employer relied on a restrictive definition of 'disability' under the American Disabilities Act when it declined to hire individuals with medical conditions or refused to engage in a meaningful interactive process with employees requesting accommodations, it will need to reevaluate its approach.

In light of the changes to the American Disabilities Act, the focus of cases is likely to change from determining whether a person is disabled to analysing the employee's and employer's actions. There will be increased scrutiny of:

  • the availability of accommodations;
  • whether the employee was offered a reasonable accommodation;
  • the reasonableness of the accommodations requested by the employee;
  • the good faith of the employer and the employee during the interactive process;
  • the reasonableness of the employer's description of essential job functions;
  • whether the employee was qualified for the job; and
  • whether the employer made the employment decision based on the employee's impairment or for a non-discriminatory reason.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com).

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