New Law Brings Major Changes to the Americans with Disabilities Act
October 22, 2008
Todd D. Steenson- Chicago
On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (S. 3406) (Act). The Act significantly broadens the Americans with Disabilities Act’s (ADA) definition of who is disabled, increases the number of individuals covered by the ADA and overrules several U.S. Supreme Court cases that the Act states inappropriately narrowed the broad scope of the ADA’s intended protection. It will take effect on January 1, 2009.
Most specifically, the Act makes the following changes:
- states that whether an individual is disabled must be determined without regard to any mitigating measures that may limit the impact of the individual’s impairment
- lowers the standard to demonstrate that an individual is substantially limited in a major life activity and therefore disabled
- removes the requirement that an employer regard an employee as actually disabled to qualify under the “regarded as” disabled definition; instead, if an employer considers any physical or mental impairment in making an employment decision (except those that are “transitory and minor”) that individual will be “regarded as” disabled
The Act will significantly broaden the ADA’s coverage and protection and create new obligations and challenges for employers. This article outlines the changes to and expansions of the ADA’s coverage, as well as the requirements contained in the new law.
A Review of the Relevant United States Supreme Court Opinions
To understand the Act’s changes, we first must discuss the ADA’s current definition of “disability” and how the Supreme Court interpreted that definition in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (Sutton) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (Toyota), the principal cases that the Act overrules.
The ADA currently defines the term “disability” with respect to an individual as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such impairment.
In Sutton, the Supreme Court held that two individuals who had 20/20 vision with glasses but 20/400 vision without glasses were not actually disabled under the first prong of the ADA’s disability definition. The Court ruled that in determining whether an individual has an actual disability, a court must consider mitigating measures, such as the individual’s glasses. Only if the individual’s condition substantially limits a major life activity in its corrected state does it constitute a disability.
The Court also held that the plaintiffs were not “regarded as” disabled by United Air Lines when it refused to hire them for positions as global commercial airline pilots based on their uncorrected vision. An individual is currently “regarded as” having a disability only if the employer perceives that individual as being substantially limited in a major life activity. It is not enough to perceive the individual as having a physical or mental impairment. The Court further ruled that an individual is substantially limited in the major life activity of working only if his or her condition disqualifies him or her from a broad range or class of jobs, not just one job.
In Toyota, the Supreme Court ruled that the terms “substantially limit” and “major life activity” in the ADA’s definition of a disability must be interpreted strictly to maintain a demanding standard for qualifying as a disabled individual under the ADA. Under this strict definition, to be substantially limited in the performance of a major life activity under the ADA, an individual must have an impairment that either prevents or severely restricts him or her from doing the activities that are of central importance in most individuals’ daily lives.
As a result of these decisions, much of the focus in ADA employment litigation has centered on whether a plaintiff is disabled. Many cases have been dismissed based on court rulings that the plaintiff could not prove he or she was disabled and the employer therefore had no obligation to comply with the ADA with respect to that individual.
The Act’s Major Changes to the ADA
The Act significantly changes these interpretations of the ADA. Most fundamentally, the Act states Congress’ intention to significantly expand the number of individuals who will qualify as disabled and be eligible for ADA protection. The Act specifically states that the definition of “disability” shall “be construed in favor of broad coverage of individuals” to the “maximum extent permitted by the terms of the [ADA].” It further turns the litigation focus on its head, stating that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” and that the “primary object of attention in cases brought under the ADA” should not be whether the individual is disabled but “whether entities covered under the ADA have complied with their obligations.”
The Act then specifically broadens all of the major definitions in the ADA. It contains significant changes to the definition of an actual disability, overruling both Sutton and Toyota.
First, the Act rejects Sutton’s ruling that mitigating measures must be considered when determining whether an individual is disabled, stating 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 ... .” Mitigating measures that may not be considered in determining whether an individual has a disability include:
(I) medication, medical supplies, equipment, appliances, low-vision devices (which do not include ordinary eye-glasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices,
mobility devices, or oxygen therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.
The Act also states that an employer may not base an employment decision on the employee’s uncorrected vision unless there is a truly job-related reason for doing so. The Act does not, however, change one significant part of Sutton: it states that any “ameliorative effects of” ordinary eyeglasses or contact lenses “shall be considered” in determining whether an impairment substantially limits a major life activity. People who have normal vision with glasses still will not be considered disabled.
The Act also expands the scope of those who are actually disabled by changing the definitions of “substantially limits” and “major life activity.” Initially, the Act overrules Toyota’s statements that these terms should be strictly limited to create a demanding standard for qualifying as disabled and that only impairments that either prevent or severely restrict an individual from doing the activities that are of central importance in most individuals’ daily lives qualify as disabilities. It also rejects an existing Equal Employment Opportunity Commission (EEOC) regulation that defines “substantially limited” as “significantly restricted” as “too high a standard” and states Congress’ expectation that the EEOC’s interpretive rule will be rewritten to correspond to the Act’s intention to cover more people as disabled.
The Act also broadens the definition of “major life activities.” Major life activities will include, but not be 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.” A major life activity also will include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” As a result, more people will be protected by the ADA as having impairments that substantially limit a major life activity.
Finally, in response to lower court cases that have restricted the ADA, the Act states that an impairment need only limit one major life activity to qualify as a disability and that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
The Act also radically changes what it means to be “regarded as” disabled. Under Sutton, an individual must be “regarded as” having an actual disability to qualify. The Act rejects the “regarded as actually disabled” requirement in three ways. First, to be regarded as disabled, an individual need only establish “that he or she has been subjected to an action prohibited under this Act 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.” It does provide, however, that this expanded definition does not apply to impairments that are “transitory and minor”; and it defines “transitory” as an impairment “with an actual or expected duration of 6 months or less.”
Second, the Act expands the ADA’s protection to any “qualified individual,” not just a “qualified individual with a disability,” which is how it is currently defined. And third, the Act broadens the definition of prohibited discrimination. The ADA currently states, “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual” with respect to employment. The Act changes this definition to state that “No covered entity shall discriminate against a qualified individual on the basis of disability.”
Taken together, these changes vastly broaden the scope of the “regarded as” disabled provision. They make the ADA much more like other anti-discrimination statutes: if you take action because you think an employee or an applicant has some kind of physical or mental impairment, you will violate the ADA. This will make ADA-based termination claims much easier to prove, because a plaintiff will no longer need to prove he or she is actually disabled, but only that the employer acted because it thought the individual had some kind of physical or mental impairment. The only solace is that the Act states that an employee who is only “regarded as” disabled is not eligible for a reasonable accommodation.
Practical Significance
The Act works a significant expansion of the ADA. The Act’s clear statement that mitigating measures cannot be considered in determining whether an individual is disabled, along with the Act’s more stringent definitions of “substantially limits” and “major life activity,” will substantially increase the number of individuals covered by the ADA and eligible for reasonable accommodations. It will be much more difficult to prevail in litigation by showing that the employee-plaintiff is not disabled. It also means that if you incorrectly base an employment decision on a perception about an individual’s physical or mental impairment, you will violate the ADA – there will no longer be the opportunity to prove that you did not perceive the individual as substantially limited in a major life activity.
These changes mean that employers must take the following actions:
- Structure your hiring and decision-making processes to ensure that you can show your decisions about individuals with impairments are based on objective, legitimate non-discriminatory considerations.
- Be prepared to engage in the interactive process and make reasonable accommodations when requested. It will be much harder to prove that you were not obligated to give a reasonable accommodation because the individual is not disabled.
- Before making an employment decision based on a conclusion that an individual’s impairment prevents him or her from doing a job, make sure you are right about the existence of the impairment, the limitations it causes, the fact that it would preclude the individual from performing the job, and that you truly cannot offer a reasonable accommodation that would allow the individual to perform the job.
We will keep you informed of new developments, including new EEOC regulations, concerning this significant change in disability law.
For more information, contact:
Todd D. Steenson
312.578.6541
todd.steenson@hklaw.com
toll free: 1.888.688.8500
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