Client Bulletins
ADA Amendments Act to Take Effect January 1

Client Bulletin #395
October 2, 2008

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On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which liberalizes the definition of “disability” and means that a dramatically larger population will be considered “disabled” and protected by the ADA’s prohibitions on discrimination and its reasonable accommodation requirements. The ADAAA amendments will become effective January 1, 2009.

The bill signed by President Bush was a compromise reached by employer and business groups, including the U.S. Chamber of Commerce and the Society for Human Resources Management, and the disability rights community.

A Short History

The ADAAA was originally known as the "ADA Restoration Act," and as originally drafted would have placed the burden of proof on employers in ADA cases, treated an "impairment" as a "disability," included a list of medical conditions that were to be considered disabilities per se, and otherwise even more dramatically broadened the scope of the Americans with Disabilities Act.

As a result of cooperation with organizations like the U.S. Chamber of Commerce and the Society for Human Resources Management, a compromise was reached, changing the name to the ADAAA, leaving the burden of proof with the employee, not treating all "impairments" as "disabilities," and dispensing with the "per se list." The U.S. House of Representatives passed the compromise legislation in June 2008, and then the U.S. Senate passed essentially the same bill last month but with a few more employer-friendly “tweaks.” The House quickly passed the Senate version of the bill, sending it on to President Bush for his signature.

Summary of ADAAA Changes

Although the ADAAA is a result of compromise, it is much less employer-friendly than the original ADA. Most significantly, the ADAAA repudiates the 1999 decision of the U.S. Supreme Court in Sutton v. United Air Lines (finding that mitigating measures had to be considered in determining whether an individual is substantially limited in a major life activity) and its 2002 decision in Toyota Mfg. Co. of Ky., Inc. v. Williams (taking a restrictive view of what constitutes a substantial limitation in the major life activity of working). The following are some additional highlights:

“Substantially Limits.” The ADA requires that a disability “substantially limit” a major life activity. (“Major life activities” under the ADAAA are discussed below.) The ADAAA implicitly repudiates the definitions of “substantially limits” in the regulations issued by the U.S. Equal Employment Opportunity Commission, and requires that the term “be interpreted consistently with the findings and purposes of the [ADAAA].”

The ADAAA provides that “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.” This overrules the Williams decision, which required that a person substantially limited in the major life activity of "working" be limited in at least one additional major life activity. It also provides that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Under the original ADA, this was not necessarily the case. Finally, whether a substantial limitation exists is to be determined “without regard to the ameliorative effects of mitigating measures.” This provision overrules Sutton and is discussed in more detail below.

Major Life Activities and Major Bodily Functions. The ADAAA has a list of “Major Life Activities” that is significantly longer than the list currently in the regulation promulgated by the EEOC. The current list is “caring for oneself, performing manual tasks, seeing, hearing, walking, speaking, breathing, learning, and working.” The ADAAA includes all of these, and adds “eating, sleeping, . . . standing, lifting, bending, . . . reading, concentrating, thinking,” and “communicating.” The ADAAA also adds an entirely new list of “Major Bodily Functions,” which includes “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” If an individual has a “physical or mental impairment” that “substantially limits” any of the list of “major life activities” or “major bodily functions,” then he or she is to be considered disabled.

Mitigating Measures. As discussed earlier, the Supreme Court has held that determining whether an individual is “disabled” within the meaning of the ADA requires consideration of any mitigating measures that might be available to the individual. For example, although epilepsy would usually be considered a “disabling” condition in its untreated form, many individuals with epilepsy are able to completely control their seizures through medication. Sutton would presumably mandate that such individuals be treated as "non-disabled" within the meaning of the ADA. Under the ADAAA, the individual would be considered “disabled” if the "unmedicated" epilepsy would be substantially limiting.. The fact that “ameliorating” (that is, “good”) mitigating measures are available would be irrelevant.

There is an exception for normal eyeglasses and contact lenses. In other words, visual impairments (for example, nearsightedness) that can be corrected with normal eyeglasses or contact lenses would not be considered “disabilities,” even under the ADAAA. Selection criteria based on uncorrected vision must be job-related and consistent with business necessity.

“Regarded As.” The current ADA and the ADAAA both protect individuals who are not actually disabled but who are “regarded as” disabled. Under the original ADA, most courts held that, to be “regarded as” a person with a disability, the employer had to perceive that the individual was substantially limited in a major life activity. If the employer perceived only that the individual was “impaired” but not “substantially limited,” there was no “regarded as” claim.

The ADAAA requires only that the employer perceive an “impairment,” although it appears to exclude the perception of impairments that are “transitory and minor” (defined as “actual or expected duration of 6 months or less”).

Any Good News for Employers? Precious little. Apart from the fact that the Restoration Act was even worse, the enactment of the ADAAA is not good news for employers. The few, weak rays of sunshine are as follows:

* The ADAAA explicitly says that reasonable accommodations do not have to be made to individuals “regarded as” having disabilities.

* The ADAAA explicitly says that reverse discrimination claims are not cognizable. (In other words, discrimination against non-disabled individuals is not a violation of the ADAAA.)

* The ADAAA does not make any significant changes to employers’ obligations of non-discrimination or reasonable accommodation, apart from dramatically expanding the pool of individuals who are entitled to such rights.

* The ADAAA does not make any changes to the existing exclusions for “sex-based” conditions (for example, transvestism and gender-identity disorder) or for “psychological-criminal” conditions (such as kleptomania or pyromania), or for current use of illegal drugs.

* The ADAAA does not make any changes to the current requirements of confidentiality of employees’ medical information, or to the existing rules regarding post-offer/pre-employment medical examinations.

What’s the Bottom Line?

The ADAAA will make it much harder for employers to take the position that any given individual is not "disabled" within the meaning of the Act. This means more reasonable accommodation requests and decisions, as well as more discrimination charges and lawsuits. Employers should ensure that their Human Resources and functional management are up to date on their legal obligations and handle accommodation requests appropriately. Some employers have not offered ADA training in years because of the relatively restrictive view that courts took of the ADA after the Sutton decision. Employers who fall into this category would be well-advised to offer comprehensive training on the requirements of the ADA and, in particular, how to effectively handle requests for reasonable accommodation. In addition, employers who use medical criteria in making employment decisions should have their criteria reviewed in light of the ADAAA's more-liberal requirements regarding who is "disabled" and who is "regarded as" having a disability.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.