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Expansion of ADA Takes Effect in January 2009
Friday, May 29, 2009

In a development likely to make it easier for employees to prevail on claims of discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”), President George W. Bush recently signed into law the Americans with Disabilities Act Amendments Act of 2008 (the “ADAAA”). The ADAAA amends and expands the coverage of the ADA. The new law, which takes effect on January 1, 2009, responds to Supreme Court decisions narrowing the scope of the ADA.

Enacted in 1990, the ADA prohibits employers with 15 or more employees from discriminating against a qualified individual with a disability with respect to any term, condition, or privilege of employment. Under the ADA, a qualified individual has a “disability” if he or she has a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment, or is “regarded as” having such an impairment. The ADA also generally requires employers to provide reasonable accommodations to individuals with disabilities.
Most significantly, the ADAAA expands the coverage of the ADA by rejecting the narrow view of “disability” adopted by the U.S. Supreme Court, and lowering the standard required to prove discrimination against individuals “regarded as” having a disability.
Reaction to Court Decisions
Congress passed the ADAAA to overturn the Supreme Court’s decision in Sutton v. United Airlines, 527 U.S. 471 (1999), in which the Court held that “mitigating measures” used by an individual must be considered in determining whether he or she has a disability.
Following this principle, courts have held that impairments corrected by prosthetics, hearing aides, medication, and other devices may not constitute disabilities under the ADA. The ADAAA changes this law and provides that mitigating measures should generally not be considered in determining whether an individual is disabled, except for ordinary eyeglasses and contact lenses.
The ADAAA also reverses the Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In that case, the Court stated that the terms, “substantially” and “major,” in the definition of disability under the ADA must be “interpreted strictly to create a demanding standard for qualifying as disabled.”
The ADAAA expressly rejects the Toyota reasoning. The ADAAA states that the standard created in this and other decisions “has created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” The law states that one of its purposes is “to provide a new definition of ‘substantially limits’ to indicate that Congress intends to depart from the strict and demanding standard applied by the Supreme Court.” Finding that the existing regulations of the Equal Employment Opportunity Commission interpreting the term, “‘substantially limits,’” set “too high a standard,” the law directs the agency to revise its regulations to apply a lower, “‘significantly restricted’” standard.
The ADAAA does not modify the ADA’s definition of “disability,” but emphasizes that the term should be construed broadly to provide greater coverage. Congress’ intention, as set forth in the ADAAA, is to “restore the intent and protections of the Americans with Disabilities Act of 1990.” The law states that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” It also clarifies that an individual whose condition is in remission or “episodic” would still be considered a person with a disability, as long as the condition would substantially limit a major life activity when active.
“Regarded As”
The ADAAA’s provisions make it easier to prove employer discrimination against individuals “regarded as” having – i.e., mistakenly believed to have – a disability. Under the ADAAA, “regarded as” plaintiffs will no longer be subject to the court-imposed requirement that they demonstrate that their employer perceived the disability as limiting a major life activity. Thus, an individual can maintain a “regarded as” discrimination claim based on a perceived impairment that, if it existed, would not constitute an ADA disability
New Employer Protections
The amended statute provides some additional protections for employers. The ADAAA states that employers are not required to accommodate individuals “regarded as” having a disability. In addition, the new law states that individuals cannot base “regarded as” claims upon minor impairments anticipated to last less than six months. The ADA was silent as to these issues, and courts considering them have reached inconsistent results.
Conclusion Before the ADAAA takes effect on January 1, employers should review their disability policies and determine whether they comply with the new law. Given that more employees will be deemed to have a disability, employers should examine their procedures and prepare to handle a potential increase in requests for accommodation.
Employers should also remember that although the ADAAA provides expanded national protections for disabled individuals, it does not preempt local laws. Therefore, employers must also be aware of any local and state disability laws that provide additional protections.
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