Twenty-five years ago this week, the Americans with Disabilities Act of 1990 (“ADA”) was enacted into law with its stated purpose being “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” Title 1 of the ADA specifically prohibited employment discrimination against “qualified” individuals with disabilities.
The ADA created new opportunities and protections for those who faced a long history of discrimination due to unfair stereotypes and assumptions as to how individuals with disabilities can meaningfully contribute to society. In the workplace environment, the ADA provided that an individual can assert a claim for discrimination on the basis of disability if (1) he/she has a disability; (2) he/she is qualified, with or without reasonable accommodation, to perform the essential functions of the position; and (3) the employer took an adverse action against the employee because of his/her disability, or failed to make reasonable accommodations for the employee.
After the ADA was enacted, however, federal courts rarely looked at whether any discrimination actually occurred in the workplace, but rather focused on whether an employee’s condition was, in fact, a “disability,” which the ADA defined as having: (a) a physical or mental impairment that substantially limits one or more major life activities, (b) a record of such impairment, or (c) being regarded as having such impairment.
At first, the lower courts and Supreme Court narrowly construed the ADA’s definition of “disability” such that it actually excluded the majority of individuals that the statute was intended to protect. These decisions allowed employers to successfully fight off disability claims. Beginning with Sutton v. United Airlines, Inc., 527 U.S. 471, (1999) and Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999), the Supreme Court opined that mitigating measures (such as medication or devices) should be taken into account in determining whether a person was substantially limited in a major life activity. In other words, if a certain medication or technological device or apparatus enabled a person with an impairment to function well, that person was often held by a court not to have a disability under the ADA, even if the impairment was the basis for discrimination.
A few years later, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court further narrowed the scope of the ADA by holding that the term “substantially limits” should be interpreted strictly, to create a very demanding standard to qualify as disabled. The Court also ruled that a “major life activity” must be an activity that is “of central importance to most people’s daily lives.” In addition, it was held that the impairment must also be “permanent or long term.”
In response, Congress moved to amend the ADA, and eventually succeeded with the ADA Amendments Act of 2008 (“ADAAA”). This was the most extensive change made to employment law in over a decade, as it sought to clear up confusion and restore the original intent and protections of the ADA. The ADAAA broadened all parts of the “disability” definition without changing the actual language of the disability prongs, and instructed courts that the determination as to whether a condition constituted a disability does not require an exhaustive analysis. The ADAAA further stated that the primary focus in lawsuits brought under the ADA should be whether entities have complied with their ADA obligations, rather than on whether an employee’s impairment is a per se disability under the ADA.
The ADAAA changed the landscape of disability claims and analysis, further making it clear that it was no longer necessary for an activity to be “central to everyday life” or “permanent or long term” in order for it to fall within the category of a major life activity. The amendments added extensive lists, including non-exhaustive examples of major life activities, such as seeing, hearing, eating, sleeping, walking, learning, and concentrating. In addition, the ADAAA made it clear that the ameliorative effects of mitigating measures cannot be considered in determining whether an employee has an impairment that substantially limits a major life activity. (The only exception is “ordinary eyeglasses or contact lenses,” which may be taken into account).
Three years later, in 2011, the U.S. Equal Employment Opportunity Commission (“EEOC”) published new regulations to implement the equal employment provisions of the ADAAA. Among other guidance, the EEOC modified the concept of “substantially limited in working” to be associated with the concept of a “type of work.” A type of work may be identified by the nature of the work, e.g., commercial truck driving, assembly line, clerical, or by reference to job-related requirements, e.g., repetitive bending, frequent or heavy lifting. This change made it easier for an individual to prove that he/she is “substantially limited in working.” The EEOC also added additional “major life activities” (e.g., sitting, reaching, interacting with others) and listed certain impairments that “consistently will meet the definition of disability” (e.g., deafness, blindness, mobility impairments requiring a wheelchair), as well as temporary, non-chronic impairments that are not disabilities (e.g., common cold, broken bone expected to heal, seasonal allergies).
Summers v. Altarum Institute, Corp., 740 F.3d 325 (4th Cir. 2014) is a fine illustration of the impact of the ADAAA on the landscape of disability claims. In that case, an employee fell while exiting a commuter train on his way to work, fracturing several bones, which meant he would not be able to walk for at least seven months. As a result, he took short-term disability leave. When he subsequently contacted his employer about a plan to return to work by working remotely, the employer fired him. The district court previously dismissed the employee’s claims of wrongful discharge and failure to accommodate because he had suffered only a temporary injury lasting less than a year, which the district court did not consider a disability. However, the Fourth Circuit reversed, finding that under the ADAAA, temporary impairments may qualify as disabilities. The court’s focus was on determining whether an individual suffers from an impairment (temporary or not) limiting a major life activity, and only then evaluating whether the individual is capable of working with or without a reasonable accommodation..
Indeed, courts across the country have embraced the broad definition of “disability” as articulated by the ADAAA combined with the 2011 EEOC regulations. They have recognized a variety of impairments as a “disability,” including, but not limited to alcoholism, bipolar disorder, carpal tunnel syndrome, fibromyalgia, HIV infection, multiple sclerosis, obesity, psoriatic arthritis, and sleep apnea.
Yet, despite these seemingly employee-friendly changes to the definition of “disability” under the ADA, courts now tend to bypass the “disability” analysis altogether to focus instead on the employee’s failure to satisfy the second prong, or the “qualified” prong. Here, courts often defer to the employer’s judgment as to whether the employee is in fact qualified, or can perform the essential functions of the job. The Second Circuit, for example, has opined that whether a particular duty is an essential function is based largely on “the employer’s judgment as to what functions of a job are essential;” and an employer’s identification of essential job duties is a business judgment to which “a court must give substantial deference.” McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 98 (2d Cir.2009).
According to one empirical study conducted at the University of Minnesota Law School in 2013, whereas employers previously won summary judgment on the “disability” prong, employers now win summary judgment far more often on the “qualified” prong. In the pre-ADAAA cases, courts granted summary judgment to the employer, finding that the plaintiff was not qualified, in 47.9 percent of those outcomes ruling on the qualified issue. The employer win rate among the post-ADAAA cases rose to 69.7 percent, a 21.8 percentage point increase in employer victories.
These numbers make clear that while the ADAAA has greatly expanded the coverage of the ADA, employers are not finding themselves on the losing side of disability discrimination claims as much as was first anticipated with the amendments. Nonetheless, as the ADA and its progeny continue to evolve in the courts, wise employers will not get too comfortable and will: (1) carefully review and update job descriptions to ensure that they accurately identify all essential job functions; (2) ensure that supervisors and human resources professionals are trained on the ADAAA; and (3) handle all disability-related requests on a case-by-case basis, instead of adopting a set of firm guidelines that may work in one instance but not another.