On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (“Amendments”). Passed in response to a series of U.S. Supreme Court decisions dating as far back as 1999, this legislation substantially expands coverage of the Americans with Disabilities Act of 1990 (“ADA”) by redefining what constitutes a protected “disability.” The Amendments will become effective January 1, 2009. While prudent employers handle any employee’s request for accommodation with care regardless of whether the employee’s impairment constitutes a “disability” under the ADA, the Amendments greatly increase the stakes in ADA litigation since more individuals will have ADA protection. As a result, certain ADA suits that previously would not have survived pre-trial motions now are likely to proceed before a jury. Employers must accordingly understand and, if necessary, modify their practices and policies to comply with the Amendments.

How the Amendments Broaden ADA Coverage

In the Amendments’ significant provisions, Congress modified the ADA as follows to expand ADA coverage:

  • Whether an individual’s impairment constitutes a protected “disability” now must be determined without regard to measures that mitigate the impact of the condition on the individual’s life activities.

In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and related cases, the U.S. Supreme Court ruled that an individual with an impairment who takes corrective measures is not disabled under the ADA if, when the corrective measures are in place, the impairment does not substantially limit the ability to perform a major life activity. Sutton’s holding foreclosed ADA protections to many individuals with controllable conditions such as epilepsy, diabetes and limbs replaced by prostheses. The Amendments reject Sutton and provide that the “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” The Amendments list examples of such measures: medication, low-vision devices, prosthetics, hearing aids, “auxiliary aids or services” and “learned behavioral or adaptive neurological modifications.” Recognizing the ADA’s unduly sweeping reach if everyone who wore eyeglasses or contact lenses were entitled to ADA protection, Congress expressly provided that the ameliorative effects of “ordinary eyeglasses or contact lenses” can be considered when determining the impact of vision problems on major life activities.

  • The “major life activities” that an individual’s condition must impact now have been expanded.

For a condition to be a “disability” under the ADA, it must “substantially limit[] one or more major life activities.” There has been significant disagreement about what types of activities have “major life” status. The Amendments eliminate some of this uncertainty by providing a non-exhaustive list: “major life activities include, but are 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.” This list is far more expansive than that provided by the Equal Employment Opportunity Commission’s (“EEOC’s”) regulations, notably adding controversial categories such as learning, concentrating and thinking. In addition, the Amendments expand major life activities to include “the operation of a major bodily function,” such as “the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Thus, the mere fact that an employee’s or candidate’s impairment substantially limits one of those bodily functions now will establish protected disability status, regardless of whether the impairment impacts the person’s ability to go about any daily life activities.

  • The EEOC and the courts now must lighten a claimant’s burden to establish that his or her impairment “substantially limits” a major life activity.

The ADA initially did not provide guidance on how much impact an impairment had to have on a person’s major life activity to be deemed “substantially limiting.” The U.S. Supreme Court in Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), attempted to provide such guidance by ruling that that the “individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s lives.” In its ADA regulations, the EEOC stated that “substantially limits” means “significantly restricted.”

The stated purposes of the Amendments include rejecting the Toyota standard as an “inappropriately high level of limitation necessary to obtain coverage under the ADA” and instructing the EEOC to revise its definition of “significantly limits.” Congress did not specify exactly how “substantially limits” should be defined. However, the Amendments direct that the redefinition yield broad ADA coverage, “consistent[] with the findings and purposes” of the Amendments.

  • Even impairments that are episodic or in remission now may constitute protected disabilities.

The courts have been particularly challenged when assessing whether an impairment that is episodic or in remission constitutes a disability because the resulting impact on a claimant’s major life activities may be sporadic or infrequent. The Amendments eliminate this issue by providing, consistent with Congress’s intention to expand ADA coverage, that ‘[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Accordingly, an employee or candidate with a wholly dormant or fully controlled impairment now may be deemed “disabled” under the Amendments.

  • An individual who does not have a “disability” now may be protected if discriminated against because of an actual or perceived impairment, even if that impairment does not affect the person’s major life activities.

The ADA protects not only individuals with an impairment that substantially limits a major life activity, but also persons who have “a record of such an impairment” or have been “regarded as having such an impairment.” In Sutton, the U.S. Supreme Court indicated the “regarded as” protections apply only if the employer believes an individual has an impairment and believes that such impairment substantially limits a major life activity. Congress now has removed the latter factor, providing in the Amendments that an individual has “regarded as” protection “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.” Recognizing the overreach of this provision, Congress clarified that impairments which are “transitory” (defined as having “an actual or expected duration of 6 months or less”) or “minor” (undefined) now are excluded from the “regarded as” protection.

  • The Amendments redefine “discrimination” to direct the courts and EEOC to focus less on the severity of an individual’s impairment and more on how the employer responded to that impairment.

For reasons not expressly stated, Congress modified the anti-discrimination directive in the ADA. With the Amendments, the ADA now prohibits discrimination “against a qualified individual on the basis of disability.” Previously, the ADA prohibited discrimination “against a qualified individual with a disability because of the disability of such individual.” By replacing the previous language with the simpler “on the basis of disability,” Congress signaled its intention that litigation be resolved less on whether the individual meets the technical definition of disability and more on how the employer worked with the individual to accommodate his or her impairment. The Amendments state that “it is the intent of Congress 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.”

Practical Implications for Employers

The Amendments likely will spur increased ADA litigation. Many employees and candidates who were not protected by the ADA before the Amendments, because of the type or nature of their impairments, will be entitled to ADA protection as of January 1, 2009. Employers who do not consider accommodations they request, or who take adverse employment actions against such individuals for any reason, may face an EEOC investigation and/or litigation. Employers also can expect increased expense and disruption in litigation that does occur because fewer cases are likely to be dismissed on pre-trial motions, resulting in more cases proceeding to a jury trial or settlement.

From a practical perspective, the Amendments may not significantly affect some employers’ handling of an employee’s or candidate’s request for accommodation. Certain states’ civil rights laws already require the protections that the Amendments now provide (e.g., California Government Code § 12926.1), so employers in such states are accustomed to being subject to such legal requirements. In addition, employers often do not have (at least until litigation) sufficient information about an employee’s medical condition and how it affects her “life activities” to determine the ADA’s applicability. Thus, many employers wisely do not try to determine at the outset whether an employee’s condition constitutes an ADA “disability” when evaluating accommodation requests. They instead focus on addressing the employee’s or candidate’s concerns in a reasonable and cost-effective manner – not only to minimize potential claims but also to promote a productive workforce.

Making technical questions about whether an individual is “disabled” secondary to issues of reasonable accommodation is no longer merely a prudent approach to ADA compliance. The Amendments now essentially require employers to take this approach.

Employers should understand the implications of the Amendments, review their policies and practices, and train their human resources professionals and supervisors on the impact of the Amendments on ADA compliance.