On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the “Act”). The Act, which is effective January 1, 2009, broadens the scope of protection provided to individuals under the Americans with Disabilities Act of 1990 (the “ADA”). The ADA prohibits employers from discriminating against disabled employees and requires employers to provide reasonable accommodation for individuals with disabilities, unless the accommodation would cause undue hardship on the operation of the employer’s business.
Under the ADA, a person is disabled if that person suffers from an impairment that “substantially limits one or more major life activities,” has a record of such an impairment, or is regarded as having such an impairment. While Congress has retained the ADA’s basic definition of “disability,” it has rejected a series of seminal Supreme Court decisions which narrowly construed that definition and has added other provisions which will provide guidance in determining whether or not an individual’s impairment is considered a disability. By doing so, Congress has shifted the focus in ADA cases from whether or not a particular person qualifies as disabled to whether or not employers complied with their ADA obligations.
In Sutton v. United Air Lines, the Supreme Court held that an employer should consider the effect of “mitigating measures,” such as medication or medical devices, when determining whether an impairment substantially limits a major life activity. For example, an employee with high blood pressure that is controlled through the use of medication would not have qualified as disabled when applying that standard. Congress specifically rejected the application of that standard and provided that courts are not to consider “the improved effects of mitigating measures” including medication, prostheses, or other aids when determining whether an individual has a disability. Consequently, many employees who successfully manage their disability, and who would have been denied protection prior to the adoption of the Act, will now be covered under the ADA.
Broadening The ADA’s Protection
In addition, Congress specifically rejected the Supreme Court’s ruling in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams wherein the Court strictly interpreted the term “substantially limited” and determined that an impairment must prevent or significantly restrict a person from “doing activities that are of central importance to most people’s lives.” While Congress did not define the term “substantially limits,” Congress did direct the courts to interpret this requirement “in favor of broad coverage under the Act” and direct the Equal Employment Opportunity Commission (“EEOC”) to issue regulations clarifying what it means to be “substantially limited” in a major life activity.
As further indication of its intent to broaden the ADA’s protection, Congress has provided that “major life activities” include, but are not limited to, “performing manual tasks, seeing, hearing, eating, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Congress also added “major bodily functions,” such as digestive, immune system, and brain functions, to a non-exhaustive list of “major life activities,” which potentially opens the door for those suffering from cancer, liver disease, multiple sclerosis and diabetes.
Finally, while an employee can qualify as disabled under the ADA if they are merely regarded as being disabled, Congress has eliminated any requirement that the perceived impairment limit a major life activity. Therefore, an employer will be liable under the ADA if it discriminates against an employee because of a perceived impairment and courts are not to consider whether the perceived impairment has any effect on a major life activity. It should be noted, however, that an employr still has no obligation to make accommodations for perceived impairments.
The overall impact of these amendments is that many employees who were not previously protected under the ADA may now be considered to have a disability. The purpose of this legislation is to broaden coverage and, as a result, more lawsuits are to be expected. Because most cases will now turn on the actions of employers, rather than the condition of the employee, it is extremely important for employers to ensure that they have complied with their obligations under the ADA.
