The Americans with Disabilities Amendment Act of 2008

The Americans with Disabilities Act of 1990 was a failed law. Its stated purpose was “to provide consistent, enforceable standards addressing discrimination against individuals with disabilities.” However, the ADA resulted in years of litigation that, rather than clarifying standards for employers and disabled to live by, was mired down in defining what is meant by “disability” and who is eligible for the statute’s protection. Worse, the Supreme Court interpreted “disability” very narrowly, which resulted in a large number of disabled employees not being covered by the law’s anti-discrimination protections.
On September 26, 2008, Congress enacted the ADA Amendment Act of 2008 (“ADAAA”) in order to breathe life into the ADA. The ADAAA’s purpose is to carry out the ADA’s original goal of providing “a clear and comprehensive national mandate for the elimination of discrimination” against the disabled and to restore the broad protections that Congress intended to give disabled individuals when it enacted the ADA.
The ADA defines “disability” as:
(1) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(2) a record or such impairment; or
(3) being regarded as having such an impairment.
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that mitigating measures – such as medication or prosthetic limbs – must be taken into account when determining whether an individual was substantially limited in a major life activity. The Court’s ruling contradicted the understandings of the Equal Employment Opportunity Commission, the U.S. Departments of Justice and Transportation, and with how the ADA’s predecessor statute, the Rehabilitation Act, had been interpreted. The holding in Sutton led to the dismissal of scores of cases because, once mitigating measures were taken into account, the disabled employee was considered insufficiently disabled to be covered by the ADA.
In another decision, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court set a very high burden for employees claiming a “disability.” The Court held that the terms “substantially limits” and “major life activity” must be “interpreted strictly” to create a “demanding standard” for individuals seeking to qualify as disabled. In addition, the Court effectively redefined “substantially limits” to mean “prevents or severely restricts.” In Toyota, the Supreme Court created an additional requirement for employees with manual restrictions nowhere found in the ADA itself. The Court also held that an employee who claims that his impairment restricts manual activities must show that those activities are “of central importance to most people’s daily lives,” such as tending to personal hygiene or doing personal and household chores.
The ADAAA repudiates Sutton and Toyota . The ADAAA provides those decisions “created an inappropriately high level of limitation necessary to obtain coverage under the AD[A].” Under the ADAAA, courts must define disability “in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” The ADAAA discards Sutton’s requirement that mitigating measures be taken into account when determining a disability. The statute also rejects Toyota’s rulings that proving one’s disability involves a “demanding standard,” and that “substantially limits” means “prevents or severely restricts.”
In order to expand the coverage of the statute’s anti-discrimination provisions, the ADAAA also provides that episodic impairments (like epilepsy) or impairments in remission (like cancer) should be treated as disabilities, so long as they are substantially limiting when active. Previously, courts routinely dismissed ADA claims because the employee’s condition was only episodic. The statute also expands the meaning of “major life activity” to include such activities as eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. Of critical importance, the ADAAA provides that “major life activities” include “major bodily functions,” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, brain, respiratory, circulatory, endocrine, and reproductive functions.” That means that if a disabled employee shows that her medical impairment, without medication, substantially limits one of these bodily functions, she does not have to prove that she is unable to perform a daily life activity, such as walking or thinking.
The ADAAA also makes it easier to prove that an employee was “regarded as” disabled. Sutton held that an employee had to show both that the employer regarded him as having an impairment and that it believed the impairment substantially limited a major life activity. The ADAAA, instead, provides that an employee is “regarded as” disabled so long as the employer perceived him as having an impairment, regardless of whether the employer believed the impairment to be substantially limiting.
The ADAAA promises to resuscitate a statute rendered stillborn by restrictive court rulings. It is hoped that the courts, and most importantly the Supreme Court, are now set on the right track, and will no longer interpret the statute in ways that excludes disabled employees clearly meant to be covered by the ADA.
For a fuller discussion of the changes made to the ADA by the ADAAA, and the impact the changes will have on the law, see my article by the same title in the “Cases and Publications” section of the BMBBLaw website.