On September 28, 2008, President Bush signed the "ADA Amendments Act of 2008" ("ADAAA"), which serves to broaden the scope of individuals covered by the ADA. Congress enacted the ADAAA as a result of its findings that both the United States Supreme Court (in its decisions in Toyota Motor Manufacturing Kentucky, Inc. v. Williams and Sutton v. United Air Lines, Inc.) and the federal Equal Employment Opportunity Commission have eroded the meaning of the ADA by too narrowly defining "disabled" so as to exclude many individuals whom Congress intended to protect. The ADAAA will take effect on January 1, 2009.

The ADAAA continues to use the same definition of "disability" as used in the ADA — namely, with respect to an individual, "a physical or mental impairment that substantially limits one or more major life activities of such individual," "a record of such impairment" or "being regarded as having such an impairment." The ADAAA, however, includes several rules of construction that require, among other things, that the definition of disability be construed "in favor of broad coverage of individuals."

Substantially Limits

The ADAAA provides that "[t]he term ‘substantially limits' shall be interpreted consistently with the findings and purposes of the ADAAA." As such, Congress expressly rejected the Supreme Court's decision in Toyota Motor Manufacturing Kentucky, Inc., which held that (i) the terms "substantially" and "major" in the definition of "disability" "need to be interpreted strictly to create a demanding standard for qualifying as disabled" and (ii) "to be substantially limited in performing a major life activity under the ADA an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Although neither the ADA nor the ADAAA contains a definition of the term "substantially limits," the ADAAA states that "the standard created by the Supreme Court…has created an inappropriately high level of limitation necessary to obtain coverage under the ADA." The ADAAA also sets forth Congress's intent that "the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." Furthermore, the ADAAA provides that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active," and that "an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability."

Major Life Activity

The ADAAA adds to the ADA a definition of "major life activity" that includes, but is not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." The ADAAA also defines a "major life activity" to include "major bodily functions," which include, but are not limited to, "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions."

Regarded As Disabled

The ADAAA clarifies the definition of what it means to be "regarded as having" an impairment that substantially limits a major life activity under the ADA. As such, "[a]n individual [now] meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] 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." This provision does not apply to impairments that are "transitory and minor;" the ADAAA defines a "transitory impairment" as "an impairment with an actual or expected duration of six months or less."

Ameliorative Effect of Mitigating Measures Not Considered

The ADAAA provides that "[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures...." As such, Congress specifically rejected the Supreme Court's decision in Sutton, which held that determining whether a condition substantially limits a major life activity required an evaluation of "the ameliorative effects of mitigating measures." This meant that, under Sutton, if an impairment that would otherwise substantially limit a major life activity could be corrected or its effects reduced by a so-called "mitigating measure," the impairment would not meet the definition of "disability" under the ADA.

The ADAAA provides a non-exhaustive list of mitigating measures that may not be considered when determining whether an impairment substantially limits a major activity. The list includes: medication; medical supplies; equipment or appliances; low-vision devices (not including ordinary eyeglasses or contact lenses); prosthetics; hearing aids; mobility devices; the use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications. The ADAAA states, however, that "the ameliorative effects of mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity."