After moving swiftly through the U.S. Congress, the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA") was signed into law by the President on September 25, 2008, representing a compromise reached between employer and business groups, and the disability rights community on the issue of Americans with Disabilities Act ("ADA") reform. The ADAAA clarifies Congress's original intent in enacting the ADA and overrules recent Supreme Court precedents interpreting the ADA. The ADAAA will take effect on January 1, 2009.
Historical Background
Since its inception in 1990, the ADA has prohibited discrimination based on a disability in areas including employment and public accommodations. The ADAAA, which is a substitute for a predecessor bill, the ADA Restoration Act, represents the U.S. Congress's response to a series of controversial U.S. Supreme Court decisions that narrowed the scope of the ADA to effectively exclude many people Congress intended to cover with the original law. In order to restore the ADA to its original purpose, the ADAAA repudiates a series of case law beginning with the 1999 U.S. Supreme Court decision in Sutton v. United Air Lines, in which the Court found that mitigating measures had to be considered in determining whether an individual is substantially limited in a major life activity. The ADAAA also overrules the U.S. Supreme Court's 2002 decision in Toyota Mfg. Co. of Ky. v. Williams, in which the Court asserted a restrictive view of what constitutes a substantial limitation in the major life activity of working.
Significant Changes by the ADAAA
The ADAAA maintains the current ADA definition of "disability," which includes the phrase "substantially limits," a phrase which was narrowly construed by the courts. However, the ADAAA aims to broaden the scope of "substantially limits" by directing courts to construe the Act "in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act." Moreover, the ADAAA clarifies that an individual is "regarded as" having a disability if the employee establishes that he or she has been discriminated against because of an actual or perceived physical or mental impairment. The "regarded as" prong does not apply to transitory and minor impairments where the impairment is expected to last less than six months. The ADAAA also clarifies that employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled.
Going forward, the ADAAA specifically prohibits courts from considering mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled. The ADAAA does, however, permit consideration of standard vision correction achieved through normal glasses or contact lenses.
The ADAAA also expands the list of major life activities for courts to consider, including the following:
- caring for oneself;
- performing manual tasks;
- seeing and hearing;
- eating, sleeping, walking and standing;
- lifting and bending;
- speaking and breathing;
- learning, reading, concentrating, and thinking; and
- working.
Under the ADAAA, major life activity includes the operation of major bodily functions including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Implications
When the ADAAA takes effect on January 1, 2009, it will make it more difficult for an employer to take the position that one of its employees is not "disabled." As a result, more reasonable accommodation requests and decisions, as well as more discrimination charges and lawsuits, should be anticipated. Employers should act now to familiarize themselves with the new standards imposed by the ADAAA to ensure that they are aware of their legal obligations and are able to handle accommodation requests accordingly.
A more detailed analysis of the ADAAA and guidance on compliance will be provided in the future. However, in the interim, if you would like additional information on how the ADAAA will affect your business, please contact a member of Blank Rome's Employment, Benefits, and Labor Practice Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.