9.12.08

The U.S. Senate unanimously passed the Americans with Disabilities Act Amendments Act of 2008 (S. 3406) yesterday, after a compromise reached by employer and business groups, and the disability rights community.

The House version (H.R. 3195) passed in June, but because the Senate version has a few additional "employer-friendly" changes, the bill will return to the House, where it may be voted on next week. President Bush is expected to sign the legislation.

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 dramatically broadened the scope of the Americans with Disabilities Act.

A result of compromises reached with organizations like the U.S. Chamber of Commerce and the Society for Human Resources Management, H.R. 3195 was more employer-friendly, leaving the burden of proof with the employee, not treating all "impairments" as "disabilities," and dispensing with the "per se list." However, both H.R. 3195 and and S. 3406 repudiate 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. v. Williams (taking a restrictive view of what constitutes a substantial limitation in the major life activity of working). In addition, the House and Senate versions of the ADAAA add "bending" and "lifting" (among other less-alarming additions) to the list of major life activities.

H.R. 3195 had replaced the "substantially limits" language with "materially restricts." The Senate version keeps "substantially limits."

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 that more reasonable accommodation requests and decisions, as well as more discrimination charges and lawsuits, can be expected. The ADA's non-discrimination and reasonable accommodation provisions are essentially unchanged, so the best defense for employers will be to ensure that Human Resources and operations management are up to date on their legal obligations and handle accommodation requests appropriately.

Constangy will keep you posted on future developments and will issue a more extensive Client Bulletin on the ADAAA if and when it is signed into law. In the meantime, if you have any questions about the ADAAA, please contact Robin Shea or the Constangy attorney of your choice.


This is a publication of Constangy, Brooks & Smith, LLC. The information contained in this newsletter is not intended to be, nor does it constitute, legal advice. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

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