On September 25, 2008, the President signed into law the Senate's version (S. 3406) of the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"), which became effective on January 1st of this year. The new law was approved by the Senate unanimously and captured strong bipartisan support, with more than sixty-five (65) sponsors, including Senators Harkin, Hatch, Kennedy, McCain, and President-Elect Obama. The ADAAA is intended to provide "a clear and comprehensive national mandate for the elimination of discrimination" on the basis of disability and to reinstate a broad scope of protection under the Americans with Disabilities Act of 1990 ("ADA"). While the law contains a number of significant changes to the ADA, the most significant, perhaps, is its expansion of the definition of "disability."1
Since the recent enactment of the ADAAA, much attention has been focused on how the new law's broader interpretation of "disability" will impact cases brought under Title I of the ADA. Title I prohibits discrimination by private employers against "qualified individuals with a disability" in the context of hiring, firing, promotion, compensation and other areas of the employment relationship. Nevertheless, because the definition of "disability" applies to the entire ADA and not just Title I, the ADAAA will have repercussions for Title III compliance by public accommodations as well. Title III guarantees "qualified individuals with a disability" the full and equal enjoyment of goods and services of any place of public accommodation which includes facilities open to the public, such as retail stores, hotels, restaurants, spas, bars, bakeries, educational institutions, theaters, stadiums, convention centers, museums, hospitals, nursing homes and amusement parks. Certain areas of office buildings may also be covered. Because the ADAAA has changed the definition of "disability" for the entire Act, including Title III, it will affect all public accommodations and commercial facilities.
By way of background, the ADA defines "disability" as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. While the new legislation fundamentally maintains this definition, it achieves a broader, more generous interpretation and application of the terms in several ways:
- First, although the legislation does not define the term "substantially limits" under the first prong of the definition, it requires courts and agencies to interpret the term in conjunction with the "Findings and Purposes" section of the Act, which mandates a broad definition. The "Findings and Purposes" section also explicitly rejects the Supreme Court's strict definition of the term as "prevents or severely restricts" set forth in Toyota v. Williams, 534 U.S. 184 (2002) ("Williams") and the Equal Employment Opportunity Commission's ("EEOC") existing regulation which defines "substantially limits" as "significantly restricted."
- Second, the ADAAA now provides a nonexclusive but broad list of "major life activities," which includes "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." It also creates an entirely new subcategory of "major bodily functions" under the definition of "major life activities," which includes the "immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions."
- Third, the ADAAA mandates that the determination of whether an individual has a disability must be made without consideration of any mitigating measures (e.g., medication, medical supplies, equipment, or appliances) on an individual's impairment2 and rejects the Supreme Court's decision in Sutton v. United Airlines, 527 U.S. 471 (1999), which held otherwise.
- Fourth, the new law clarifies that an individual is protected under the "regarded as" prong so long as s/he establishes that s/he has been subjected to prohibited action based on an actual or perceived physical or mental impairment and that s/he need not establish substantial limitation in a major life activity to be protected under this prong. Equally important, since in this situation the protected individual does not have an ADA disability, no reasonable accommodation must be provided under Title I (Employment) nor does an owner or operator of a public accommodation have to modify its policy, practices or procedures under Title III.
All of these changes effectively expand the definition of "disability" under the entirety of the Act, and thus, who will be considered disabled for Title III compliance. By providing a larger list of "major life activities" and the new subcategory of "major bodily functions," for example, the amended Act may cover individuals with certain illnesses that may not have been covered before. For example: multiple chemical sensitivity (MCS) is an illness that might cause an adverse physical reaction and symptoms, such as burning eyes, wheezing, coughing, headaches, chest pain, and skin rashes, when an individual is exposed to low levels of different kinds of chemicals, pollutants, or solvents, including cleaning agents, perfumes and a variety of materials regularly used by public accommodations. The new inclusion of "respiratory functions" and some of the other major bodily functions raises the question whether the increasing percentage of individuals who claim to have MCS may be covered by the Act. Likewise, individuals who have cancer that is in remission but whose major bodily functions have been substantially impaired, may be considered disabled under the new legislation.
As noted, the ADAAA will undoubtedly increase the number of individuals with disabilities protected by the Act. Consequently, owners and operators of public accommodations now need to consider individuals with conditions that they may not have previously considered (e.g.: conditions controlled by medication or other mitigating measures) as coming under the protection of federal disability law. Despite the expansion of protections afforded under the amended ADA, the expansion should have little impact for employers in a number of states, such as California, New Jersey and New York, where state and/or local laws are already expansive in their protections.
Footnotes
1. The ADAAA affects more than the definition of disability under the Act. For example, it clarifies the section of the Act dealing with individuals "regarded as" having an impairment and changes the language of Section 102 to prohibit discrimination against a qualified individual "on the basis of disability." For a detailed explanation of the changes in the ADAAA, see Proskauer's September 2008 Client Alert available at click here.
2. Prescription eyeglasses and contact lenses are excluded, and may be considered when assessing whether an individual is substantially limited in a major life activity.
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