The ADA Amendments Act of 2008 (ADAAA) was signed into law by President George W. Bush on September 25, 2008. This Act makes important changes to the Americans with Disabilities Act of 1990 (ADA). Because the changes this Act makes to Title I of the ADA primarily affects the business community and employers in particular, it is essential that employers and human resource representatives understand the Act and its implications on the employer-employee relationship.
• Is an amendment to the Americans with Disabilities Act of 1990 (ADA). It is a revision of a previous proposal, which was known as the ADA Restoration Act of 2007 (ADARA).
• Is Congress’s response to limiting EEOC regulations and several United States Supreme Court decisions that narrowed the group of people whom Congress intended to protect under the ADA.
• Retains the ADA’s basic definition of “Disability”, but changes the way that certain terms should be interpreted.
• Is the result of intensive negotiations between representatives from the business and disability communities, and reflects a compromise between the two groups. It is backed by numerous business organizations, including the Society for Human Resource Management (SHRM), the HR Policy Association, the National Association of Manufacturers (NAM), and the U.S. Chamber of Commerce.
• Went into effect on January 1, 2009.
Striking the Right Balance
“Win” For Businesses
The ADA Amendments Act affects only a small portion of the ADA. The act focuses primarily on the definition of disability and its interpretation. All other aspects of the law, including reasonable accommodation rights and responsibilities and the “qualified individual” requirement, remain unchanged. Thus, despite changes to the ADA, it's likely that most businesses will not experience a significant impact:
• Employers are still required to abide by the ACT if they employ 15 or more employees;
• Prospective or current employees must still be qualified for and able to perform the essential functions of the position held or desired;
• Employers still define the essential functions of the position;
• Employers still have the right to require medical documentation to verify employees’ disabilities;
• Employees “regarded as” individuals with disabilities are protected only from discrimination on the basis of disability and are not entitled to reasonable accommodations;
• Employers may still be excused from the duty to accommodate under undue hardship and direct threat.
“Win” for Individuals with Disabilities
The ADA Amendments Act restores coverage to individuals who were previously determined not to qualify for protection under the ADA. Individuals with diabetes, epilepsy and cancer, will now be protected from discrimination and qualified to obtain necessary reasonable accommodations. These changes make it more likely that individuals with these and other conditions will be able to:
• Obtain employment for which they are capable and qualified; and
• Support themselves, their families and their communities by being active, contributing members of society.
Definition of Disability
The Americans with Disabilities Act of 1990 defines the term “disability” as:
• A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
• A record of such an impairment; or
• Being regarded as having such an impairment.
There appears to be no substantive changes to the definition of “disability” under the ADA Amendments Act of 2008. The Amendments focus on changing the way that this definition is to be interpreted by the courts. In addition to emphasizing that the term be interpreted broadly, there are five key areas of interest in which the definition is significantly altered by the ADAAA:
• Definition of “substantially limits”;
• Definition of “major life activities”;
• Consideration of mitigating measures;
• Inclusion/exclusion of episodic impairments, impairments in remission, and short-term/temporary impairments; and
• Coverage under the “regarded as” prong.
“Substantially Limits”
The ADA Amendments Act makes important changes to the term "substantially limits".
Specifically, the Act:
• Rejects the Supreme Court’s holding in Toyota v Williams;
• Directs the Equal Employment Opportunity Commission to revise its regulations defining the term; and
• Emphasizes that the term “substantially limits” is to be interpreted broadly.
The Equal Employment Opportunity Commission’s definition of “substantially limits” combined with the Supreme Court’s ruling in Toyota sharply narrowed the definition of disability and created an overly restrictive qualification standard. As a result, countless individuals with disabilities, including many who were intended by Congress to be protected under the ADA, were precluded from qualifying for protection under the Act. To restore original Congressional intent, the ADA Amendments Act strikes this narrow interpretation of the term “substantially limits” and emphasizes that it is to be interpreted broadly.
The Equal Employment Opportunity Commission is currently evaluating the impact of the ADA Amendments Act on its regulations, enforcement guidances and other publications. Stay tuned to www.eeoc.gov for more information!
“Major Life Activities”
The ADA Amendments Act makes important changes to the term "major life activities".
Specifically, the Act:
• Rejects the Supreme Court’s holding in Toyota v Williams;
• Expands the definition of “major life activities”; and
• Clarifies that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
The ADAA expands the definition of “major life activities” by including two non-exhaustive lists. The first list includes many activities that have previously been recognized by the EEOC, as well as activities that have not.
• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating*
• Sleeping*
• Walking
• Standing*
• Lifting*
• Bending*
• Speaking
• Breathing
• Learning
• Reading*
• Concentrating*
• Thinking*
• Communicating*
• Working
*Indicates activities that have not previously been recognized
The second list includes the operation of major bodily functions:
- Functions of the immune system
• Normal cell growth
• Digestive
• Bowel
• Bladder • Neurological
• Brain
• Respiratory
• Circulatory
• Endocrine
• Reproductive
Consideration of Mitigating Measures
The ADA Amendments Act makes important changes to the definition of disability by changing which factors may be taken into account when determining whether an individual is substantially limited in a “major life activity”.
Specifically, the Act:
• Rejects the Supreme Court’s holding in Sutton v United Air Lines; and
• Prohibits consideration of mitigating measures in the “substantially limited” analysis.
The ADA Amendments Act excludes consideration of all mitigating measures other than “ordinary eyeglasses or contact lenses”, which is defined as “lenses that are intended to fully correct visual acuity or eliminate refractive error.”
Thus, mitigating measures may not be considered in determining whether an individual has a substantially limiting impairment. Examples:
• Medication
• Medical supplies or equipment
• Low vision devices
• Prosthetics • Hearing aids
• Cochlear implants or other implantable hearing devices
• Mobility devices
In addition, employers and courts may not take into consideration the use of:
• Assistive technology
• Reasonable accommodations
• Auxiliary aids or services
• Learned behavioral or adaptive neurological modifications
Episodic Impairments & Impairments in Remission
Congress intended people with disabilities like epilepsy and cancer to be protected under the ADA. However, under the Supreme Court’s interpretation of “disability”, individuals with these types of conditions were largely excluded from the ADA’s protections because:
• Their impairments were not active; and/or
• They used mitigating measures like medication or chemotherapy to control the effects of their impairments.
Some lower courts even held that individuals with these conditions were not disabled if they could use mitigating measures to control the effects of their impairments but chose not to.
Thus, the ADA Amendments Act clarifies that episodic impairments, or medical conditions that are in remission are disabilities, if they would substantially limit a major life activity when active. (e.g. diabetes, multiple sclerosis, epilepsy or other seizure disorders, cancer, lupus, etc.)
“Regarded As” Having a Disability
The ADAAA also clarifies what it means to be “regarded as” a person with a disability. The Act:
• Rejects the Supreme Court’s holding in Sutton v United Airlines;
• Reinstates the reasoning of the Supreme Court in School Board of Nassau County v Arline;
• Clarifies that individuals who are “regarded as” having a disability are not entitled to reasonable accommodations;
• Clarifies that the “regarded as” prong does not apply to impairments that are transitory and minor.
Under the ADA Amendments Act,
[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes 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.
Prior to the Supreme Court’s decision in Sutton, the “regarded as” analysis focused on how an individual was treated by an employer. Sutton, however, shifted the focus to the employer’s beliefs about an individual’s disability and required the individual to prove that the employer believed either that:
• The employee had a substantially limiting impairment that they did not have; or
• The employee had a substantially limiting impairment that was, in fact, not substantially limiting.
Because the “regarded as” prong was created to protect individuals who did not qualify as disabled under the first prong of the definition of disability (substantially limiting impairment), but who were, nonetheless, discriminated against on the basis of disability, Congress deemed it necessary to clarify that the “substantially limiting” requirement does not apply in the context of a “regarded as” analysis.
However, because individuals falling under the “regarded as” prong do not have substantially limiting impairments that affect their ability to perform the essential functions of their positions, individuals qualifying under this prong are protected only against discrimination on the basis of disability and are not entitled to reasonable accommodations. Further, impairments that are transitory or minor (that is, with an actual or expected duration of six months or less) won’t qualify for “regarded as” protection.
Impact of the ADA Amendments Act of 2008 on Employers
There are concerns in the business community about how the ADA Amendments Act will affect employers. Many view the act negatively, and some have even proposed that it will “herald the end for human resource professionals.” The fear is that the ADAAA will:
• Significantly expand ADA coverage;
• Result in more requests for reasonable accommodations; and
• Result in a new wave of ADA litigation.
The ADA Amendments Act Will Not Significantly Expand ADA Coverage.
The ADA Amendments Act does not expand ADA protections—it merely restores original Congressional intent. The definition of disability is the same, only the standards under which the definition is to be interpreted have changed.
When Congress enacted the Americans with Disabilities Act in 1990, it intended the Act to provide individuals with disabilities the same protections afforded to women, African Americans and other minorities under the Civil Rights Act of 1964. Although the ADA differs from other civil rights acts, in that it requires individuals to prove that they qualify for protection, the purpose is the same—to provide protection against discrimination.
The Supreme Court’s holdings in Sutton and Toyota placed too much emphasis on determining whether an individual had a disability under the ADA; the issue of whether or not discrimination actually occurred was largely ignored. The ADA Amendments Act makes the “disability” analysis less cumbersome, so that the more important issue of discrimination can be addressed.
The ADA Amendments Act May Result in More Requests for Reasonable Accommodation.
The Americans with Disabilities Act has two primary purposes:
• To protect individuals with disabilities from discrimination on the basis of disability; and
• To provide equal opportunities to individuals with disabilities.
The right to reasonable accommodations falls under the latter purpose, as it is intended to provide individuals with disabilities the ability to perform the essential functions of their position in the same manner that they would, but for the disability.
The protection against discrimination and the right to reasonable accommodation are two separate protections and the ADA Amendments Act does not change the current law regarding reasonable accommodations. Only the definition of disability and how it is to be interpreted is changed.
Although more employees will be considered individuals with disabilities, those who pose a direct threat to themselves or others still do not qualify for protection under the ADA and are not entitled to reasonable accommodations. Even those employees who do qualify for protection, and are therefore entitled to reasonable accommodations, must still show that they:
• Are otherwise qualified for the position; and;
• Can perform the essential functions of the position with or without the accommodation.
Employers still define the essential functions of a position and may still reject accommodation requests if providing the accommodation would cause and undue hardship. Furthermore, only those employees with substantially limiting impairments are entitled to reasonable accommodations. As stated above, individuals who are “regarded as” having a disability are not entitled to accommodations.
The ADA Amendments Act is Not Likely to Result in a New Wave of ADA Litigation
Similar to any other new law, the ADA Amendments Act will generate some litigation initially. It is doubtful, however, that the Act will significantly increase the number of lawsuits brought by individuals with disabilities over the long term.
To prevail on a claim of unlawful employment discrimination under the ADA, an individual must still show that:
• They are an individual with a disability;
• They are otherwise qualified to perform the job requirements, with or without reasonable accommodation; and
• They suffered an adverse employment action because of their disability.
The ADA Amendments Act only makes the determination of whether or not an individual is an individual with a disability a more straightforward analysis. Even if an individual is determined to have a disability, they must still demonstrate that they were otherwise qualified for the position and that they suffered an adverse employment action. Then, and only then, will the individual have grounds for filing a charge of discrimination.
Furthermore, it must be remembered that while the ADA Amendments Act makes it easier for individuals to establish that they have a disability under the ADA, qualification as an individual with a disability is not automatic. An impairment must still “substantially limit a major life activity.”
Unlike its predecessor, the ADA Restoration Act of 2007, the ADA Amendments Act of 2008 retained the “substantially limits a major life activity” requirement. While the Act relaxes the definition of the term, it is not altogether obsolete.
Many are concerned about the new “regarded as” clause and its potential implications on lawsuits filed against employers. Again, it must be remembered that employees who qualify for protection under the “regarded as” prong are not entitled to reasonable accommodations under the ADA Amendments Act, they are only protected from discrimination, which means that no case can be brought for failure to accommodate.
As for discrimination cases, individuals who are “regarded as” having a disability must meet the same requirements as individuals falling under the “substantially limiting impairment” prong of the definition of disability prior to bringing a lawsuit. (See above).
