ALERT: The ADA Amendments Act of 2008 Expands the Protections of the Americans With Disabilities Act of 1990
The ADA Amendments Act of 2008 ("ADAAA" or "the Act") amends the Americans with Disabilities Act of 1990 ("ADA"), which, among other things, prohibits discrimination against disabled employees and disabled job applicants. By passing the ADAAA, Congress purported to "restore the intent and protections" of the ADA. Specifically, Congress expanded the definition of disability under the ADA to comport with "how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973."
The ADAAA will become effective on January 1, 2009.
The ADAAA Rejects the Supreme Court’s and EEOC’s Strict Interpretation of the ADA
Under the ADA, "disability" is defined 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 an impairment.
42 U.S.C. § 12102.
The ADAAA does not alter this definition, but instead clarifies the meaning of certain terms contained therein, and expressly rejects certain Supreme Court cases and EEOC regulations that called for a narrow interpretation of these terms.
Specifically, the ADAAA provides that the term "major life activities" includes, but is 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." The ADAAA further clarifies that "major life activities" includes "the operation of a major bodily function," which includes, among other systems, the immune, digestive, respiratory, and circulatory systems.
The Act states that episodic impairments or medical conditions that are in remission may constitute a disability "if it would substantially limit a major life activity when active."
The ADAAA also clarifies what it means for an impairment to "substantially limit" a "major life activity." Expressly rejecting the U.S. Supreme Court’s holdings in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases, the ADAAA requires that, with the exception of ordinary eyeglasses or contact lenses, the "determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures." This means that individuals who have successfully managed their disabilities with medication, devices, or other means may still be covered under the ADA. Further, the ADAAA also expressly overrules the Supreme Court’s decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In Toyota Motor, the Supreme Court held that to be substantially limited in performing a major life activity, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most peoples’ daily lives. Without providing further guidance or clarity, the ADAAA states that the Supreme Court’s holding in Toyota Motor "created an inappropriately high level of limitation necessary to obtain coverage under the ADA." Similarly, without further guidance, the Act also instructs the Equal Employment Opportunity Commission to revise its regulations defining "substantially limits" as significantly restricted to be consistent with the amendments under the ADAAA. The ADAAA also states that an impairment that substantially limits only one major life activity need not limit any other major life activities to be considered a disability under the Act.
The ADAAA Expands the ADA’s Concept of Individuals "Regarded As" Having a Disability
The ADAAA also expands the ADA’s definition of "disability" by stating that "an individual meets the requirement of ‘being regarded as having an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under [the] 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." This clarification rejects the Supreme Court’s reasoning in Sutton, which required that a perceived impairment must, like an actual impairment, substantially limit a major life activity, and reinstates the reasoning of the Supreme Court’s decision in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), "which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973." The ADAAA, however, excludes impairments that are transitory and minor from the "regarded as" definition. Transitory impairments are those with an actual or expected duration of six months or less.
The Act limits the application of the ADA by stating that an employer’s duty to accommodate does not extend to individuals claiming discrimination under the "regarded as" prong of the disability discrimination. Thus, the ADAAA resolves the split among the federal circuit court on this issue.
Claims of "Reverse Discrimination" Are Not Actionable
Additionally, the ADAAA prohibits claims of "reverse discrimination" under the ADA. Specifically, the ADAAA states that the ADA does not "provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability."
Practical Considerations for Employers
While the ADAAA makes some significant changes to the ADA, employers with robust non discrimination policies and well-trained managers and human resources professionals likely need not make substantial changes to their practices and procedures. The following may help employers ensure compliance with the ADAAA.
(1) Employers should review their handbooks and employment policies to ensure that any definitions used track the language of the ADAAA. Any changes to employment policies should be promptly and clearly communicated to all employees.
(2) Employers should ensure that management and human resources employees receive adequate training about the changes to the ADA.
(3) Employers that have denied reasonable accommodation requests to current employees after having determined that the employee was not disabled under the ADA’s statutory definition of disability should review those decisions to determine whether the ADAAA changes their analysis.
Finally, employers should be aware that the new statute will likely make it more difficult to prevail on summary judgment in disability cases. In the future, more cases brought under the ADA may turn upon the employer’s motivation for an employment decision, rather than upon the question of whether the plaintiff is genuinely "disabled."
This alert is intended to provide a brief synopsis of recent developments in the law and should not be construed as legal advice. For more information, please contact your Jones Day contact, Jacqueline Holmes, or Sarah McClure at 202.879.3939.
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