2008 ADA Amendments Act
It looks like things are about to change for employers under the Americans with Disabilities Act (“ADA”). On September 17, 2008, the House of Representatives approved the Senate’s revised version of the “ADA Amendments Act of 2008” (“the 2008 Act”). President Bush has signed the Act and it will be effective January 1, 2009.
The 2008 Act openly affirms its purpose to “restore the intent and protections of the Americans with Disabilities Act of 1990” by, among other things, “reinstating a broad scope of protection to be available under the ADA” and emphasizing that “the primary object of attention” in an ADA claim is “whether entities covered under the ADA have complied with their obligations” and not “whether an individual’s impairment is a disability under the ADA” after extensive analysis. In short, Congress has essentially said, “Let’s not fight about whether someone has a covered disability under the ADA and, instead, let’s focus on whether he’s been offered reasonable accommodations and equal treatment by his employer.”
In support of this stated purpose, the 2008 Act:
| 1. Affirmatively states that the ADA’s protections are to be construed broadly, not narrowly.12. Explicitly rejects prior U.S. Supreme Court precedent limiting the types of impairments that can “substantially limit major life activities.”Prior to the 2008 Act, the ADA defined a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual,” or “a record of such an impairment,” or “being regarded as having such an impairment.”2 Thus, even if a person had an impairment, it was not necessarily an ADA-covered disability unless it “substantially limited” a “major life activity.” The ADA did not, however, further define these two phrases.Lacking any statutory definition, the courts and the EEOC derived their own parameters for these phrases and applied them on a case by case basis. To this end, the U.S. Supreme Court instructed that these phrases “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”3The 2008 Act unequivocally states that it “rejects the standards” required by the U.S. Supreme regarding the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA and that it further “conveys congressional intent” that these standards for “substantially limits” have “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” Accordingly, although the 2008 Act does not provide its own definition for this terms, it instructs that “the term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.”3. Provides a broad and inclusive description of “major life activities.”Prior to the 2008 Act, many courts, including the Fifth Circuit, routinely started with the EEOC’s description of “major life activities” when analyzing whether a particular impairment could be deemed “disabling” under the ADA.4 The EEOC’s description included “…functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”5The 2008 Act now provides an expansive category of “major life activities” which include, but are not limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The 2008 Act also adds a provision that specifically includes as major life activities “the operation of major bodily functions,” which itself includes, without limitation, “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”4. Rejects consideration of “mitigating measures” when determining whether an impairment “substantially limits major life activities.”In 1999, the U.S. Supreme Court held that “a person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity” and, therefore, is not “disabled” under the ADA.6 Pursuant to these directives, courts routinely denied that an impairment qualified as a disability under the ADA where the impairment could be, or actually was, mitigated through outside measures.7 In fact, even the EEOC altered its investigation guidelines to instruct that “a person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the ADA’s first definition of ‘disability’ (a physical or mental impairment that substantially limits a major life activity).”8The 2008 Act rejects this approach and, instead, confirms that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as: medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies, the use of assistive technology, reasonable accommodations or auxiliary aids or services, or learned behavioral or adaptive neurological modifications.” The 2008 Act does, however, allow for consideration of “the ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses.”5. Allows impairments that are in remission or are “episodic” to qualify under the ADA. In the U.S. Supreme Court’s 1999 Sutton decision, the Court pointed out that the “the phrase ‘substantially limits’ appears in the Act in the present indicative verb form.” Based upon this terminology, the Court noted that “we think the language is properly read as requiring that a person be presently – not potentially or hypothetically – substantially limited in order to demonstrate a disability.”The 2008 Act makes clear, however, that a person can be disabled under the ADA if her impairment is not presently substantially limiting any major life activity. The 2008 Act states that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”6. Lessens the burden to obtain ADA coverage under “regarded as disabled” claims.As noted above, the ADA defines a person as “disabled” if they can show they were “regarded as having such an impairment.”9 The use of the phrase “such an impairment” refers back to the primary definition of a “disability” as being “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”10 Numerous court decisions, therefore, emphasize that, in order to seek ADA coverage under the “regarded as” prong, a person cannot merely have been regarded as having some type of impairment, but must have, instead, been regarded as having an impairment that substantially limited a major life activity.11But, the 2008 Act unequivocally states that a “regarded as” claim can prevail if discrimination occurred “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” As such, employees seeking ADA coverage will simply need to show that they were perceived as being impaired, and will not need to make the additional showing that the impairment was perceived as being substantially limiting to a major life activity. |
So, what can employers expect from these anticipated amendments to the ADA? Clearly, more people will be eligible to bring an ADA claim – for example, even a person who has been in remission from cancer for several years can, apparently, now claim an ongoing disability. Then, when claims are filed, employers cannot expect to routinely obtain a summary judgment dismissal by arguing that the claimant is not covered under the ADA. Instead, as noted by the 2008 Act, the focus of ADA suits will shift more towards the accommodation offered or denied, and/or whether the claimant was actually discriminated against. To this end, employers must spend adequate time and resources fully analyzing proposed adverse employment actions and/or requested accommodations at the time they are at issue, document the analysis performed, and then only make decisions after fully exploring the options.
However, what might be the most concerning aspect of the 2008 Act are its amendments to the “regarded as” prong of ADA coverage. This prong has always been the hardest for employers to prevent, as a careless remark can be enough to file an EEOC charge and subsequent lawsuit on the basis that the employers wrongly believed the employee to be disabled. But, such claims were often dismissed because the alleged misperception did not encompass a belief that the employee was limited in performing a major life activity. Now, employers can no longer rely on dismissal of these claims. As such, employers must become more diligent and thorough in training supervisors and management to avoid commentary on, or consideration of, an employee’s potential impairments because a simple remark as to an employee’s impairment – regardless of the severity of the impairment – can apparently support a “regarded as” ADA claim.
1In so doing, the 2008 Act directly contradicts prior U.S. Supreme Court directives to “strictly interpret” the ADA’s terms “to create a demanding standard for qualifying as disabled. SeeToyota Motor Mfg, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
242 U.S.C. § 12102(2).
3SeeToyota Motor Mfg, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The EEOC defined the term “substantially limits” to mean, among other things, “[u]nable to perform a major life activity that the average person in the general population can perform”; or “[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j). Pursuant to these directives, Fifth Circuit courts strictly reviewed the impact of an impairment on the claimant’s daily life. See, e.g., Hinojosa v. Jostens Inc., 128 Fed.Appx. 364, 367 (5th Cir. 2005)(applying the Toyota standard and explaining that “Hinojosa simply asserts that his impairment makes it difficult for him to perform activities of daily living. However, he produces no evidence whatsoever that he is prevented or even severely restricted from performing such activities.”).
4See, e.g., Cutrera v. Board of Sup’rs of Louisiana State Univ., 429 F.3d 108 (5th Cir. 2005)(“The EEOC’s regulations state that the term ‘major life activities’ includes ‘functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.””).
529 C.F.R. § 1630.2(i).
6Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). In Sutton, the Petitioners each had severe myopia, but with the use of corrective lenses, each had 20/20 vision. Although they could not drive a vehicle or shop in a store without corrective lenses, when corrective measures such as glasses or contact lenses were in use, both “function[ed] identically to individuals without a similar impairment.” The Petitioners were rejected as airline pilots because they did not meet the airline’s minimum vision requirement, which was uncorrected visual acuity of 20/100 or better. The Supreme Court noted that “the phrase ‘substantially limits’ appears in the Act in the present indicative verb form,” and accordingly concluded “we think the language is properly read as requiring that a person be presently-not potentially or hypothetically-substantially limited in order to demonstrate a disability.” Thus, because the Petitioners were not sufficiently impaired as long as they were using their glasses or contact lens, they were not disabled under the ADA and could not allege claims under it.
7See, e.g., Winters v. Pasadena ISD, 124 Fed.Appx. 822, 824 (5th Cir. 2005)(finding no evidence that the plaintiff had a record of a specific condition that substantially limited a major life activity where she testified that her depression was controllable by medication and her doctor said her depression was treatable with medication and would not prevent her from working).
8Instructions for Field Offices: Analyzing ADA Charges after Supreme Court Decisions Addressing “Disability” and “Qualified” (Dec. 13, 1999),
http://www.eeoc.gov/policy/docs/fieldada.html.
942 U.S.C. § 12102(2). Under this prong, it is necessary that a covered entity entertain misperceptions about the individual-it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often “resul[t] from stereotypic assumptions not truly indicative of … individual ability.” See 42 U.S.C. § 12101(7). See alsoSchool Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284 (1987) (“By amending the definition of ‘handicapped individual’ to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment”); 29 C.F.R. pt. 1630, App. § 1630.2( l ) (explaining that the purpose of the regarded as prong is to cover individuals “rejected from a job because of the ‘myths, fears and stereotypes’ associated with disabilities”).
1042 U.S.C. § 12102(2).
11See, e.g., Tullos v. City of Nassau Bay, 137 Fed.Appx. 638 (5th Cir. 2005)(“For Tullos to prevail, there must be sufficient evidence for a reasonable jury to conclude that Tullos’s impairment, as Wrobleski perceived it, would have substantially limited one of Tullos’s major life activities.”)(citing to McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 281 (5th Cir. 2000)); Barnett v. Tree House Cafe, Inc., 2006 WL 3545025 *6 (S.D.Miss. 2006)( “Even if the defendants knew that Barnett had an impairment, there is no evidence that any of them regarded the plaintiff as having a substantially limiting impairment of a major life activity. The mere fact that an employer was aware of an employee’s impairment does not by itself lead to the conclusion that the employer regarded the employee as disabled.”). See alsoPegram v. Honeywell, Inc., 361 F.3d 272, 287 (5th Cir. 2004); Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc.,242 F.3d 610, 616 (5th Cir. 2001).