October 10, 2008

President George W. Bush signed into law a measure (S. 3406) that significantly amends the Americans with Disabilities Act. Ironically, the original ADA was signed in 1991 by his father, former President George H.W. Bush. The ADA Amendments Act of 2008, which was negotiated by business groups and the disability and civil rights communities, together with its principal congressional sponsors, passed the Senate by unanimous consent on September 11, and it was approved by voice vote in the House on September 17.

While the bill reverses several U.S. Supreme Court rulings favorable to business concerning the definition of "disability" for purposes of ADA coverage, and therefore is far more inclusive and could lead to additional litigation for employers, the negotiated bill is an improvement over the original ADA Restoration Act (which business groups in Washington feared would become law). In effect, the original bill would have elevated virtually any impairment into a legally actionable "disability" and would have made it far easier to sue employers. The new ADA Amendments Act is far from perfect, but it may be the best "deal" that employer groups could negotiate in a hostile environment.

In light of the act's passage, Ogletree Deakins will be hosting a webinar on Monday, October 13, 2008, to discuss employers' obligations under the new law. Registration information will be sent to all clients in the near future.

Details of the New Law
Under the ADA Amendments Act, which becomes effective on January 1, 2009, courts are to broadly construe the definition of "disability" in favor of coverage of individuals under the ADA. Sponsors of the new law believed that the courts had gone beyond the ADA's original intent in making it more difficult for individuals to sue employers for disability discrimination.

The new law also provides that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a "disability." Also, an impairment that is episodic or in remission will still be considered a disability under the new law if it would substantially limit a major life activity. Significantly, the determination as to whether an impairment substantially limits a major life activity must be determined without regard to any mitigating factors such as prescriptive medicines or equipment (except for ordinary eyeglasses or contact lenses) that would ameliorate the effects of the disability.

No "Mitigating Factors" Defense
In other words, the ADA Amendments Act eliminates mitigating factors from the definition of a disability which was the basis for the Supreme Court's 1999 rulings in Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson's Inc. v. Kirkingburg. In those cases, the court held that "mitigating measures" that would assist an individual in controlling an impairment must be a factor in determining whether an individual is disabled within the meaning of the ADA. The ADA Amendments Act specifically overturns those three decisions, which Congress found were contrary to the original intent of the ADA.

For example, the new law states that Sutton incorrectly held that for an individual to be classified as disabled under the ADA the individual must have "an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives" and that disability is to be determined with reference to the "ameliorative effects of mitigating measures."

The ADA Amendments Act excludes mitigating factors as follows: "The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as - (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses 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."

These changes are designed to broaden the application of the ADA. Unfortunately, according to proponents of the bill, the U.S. Supreme Court decisions have narrowed the definition of disability so much that people with serious conditions such as epilepsy, muscular dystrophy, cancer, diabetes and cerebral palsy have been determined to not meet the definition of "disability" under the ADA. The result: in 2004, plaintiffs lost 97 percent of ADA employment discrimination claims that went to trial, often due to the interpretation of the definition of disability.

Changes to "Substantially Limits" a Major Life Activity
The ADA Amendments Act also overturns the Supreme Court's decision in Toyota Motor Mfg. Co. of Kentucky v. Williams (2002), which held that courts should apply a tough standard in determining whether an individual with an impairment is "substantially limited" in a major life activity and, therefore, disabled under the ADA for purposes of alleging unlawful employment discrimination. While the new law retains the "substantially limits" phrase, it directs the Equal Employment Opportunity Commission to promulgate less restrictive rules that would provide broader coverage.

For example, the ADA Amendments Act requires that the new EEOC regulations define the term "substantially limits" as whether an individual is "significantly restricted" in a major life activity. However, the new law also preserves the more favorable rules of regulatory construction and legal review for courts to follow with regard to government rulemaking, which would have been diminished under the original ADA Restoration Act.

The new law defines "major life activities" as: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." The term also would cover "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."

Changes to "Regarded as Disabled"
Importantly for employers, the ADA Amendments Act also clarifies the so-called "third prong" of the ADA's definition of disability - where an individual is "regarded as" disabled by the employer. The ADA prohibits discrimination in employment with regard to whether an individual is (a) disabled; (b) has a record of disability; or (c) is regarded as disabled.

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." This does not apply to impairments that are transitory and minor. The new law defines a "transitory impairment" as "an impairment with an actual or expected duration of 6 months or less."

Importantly for employers, the ADA Amendments Act provides that reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment. Accommodations need not be provided to an individual who is only "regarded as" having an impairment.

Conclusion
Certainly, the ADA Amendments Act is less favorable for employers than the current ADA as interpreted by the Supreme Court. Clearly, it will lead to increased litigation under the broader definitions of disabled individuals under the new ADA. It is, however, much less of a problem for employers than the original ADA Restoration Act.

Employers would be well advised to seek the assistance of legal counsel to determine the effects of these legislative changes on current policies and practices at the workplace regarding nondiscrimination on the basis of an individual's disability.

Look for a major article discussing the ADA Amendments Act in an upcoming issue of The Employment Law Authority, as well as other programs (including a webinar on October 13) to guide employers as they adjust to these changes.

For more information on the new law as well as advice on compliance, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at [email protected].