The ADA Amendments Act

In the 17 years after passage, however, some legislators had grown irritated over the Supreme Court's application of the ADA. Courts had held individuals with seemingly disabling health problems such as epilepsy, diabetes, cerebral palsy, and muscular dystrophy not to be “disabled” under the ADA. The ADAAA was intended to restore the “broad scope of protection” originally contemplated by the original law. ADA Amendments Act of 2008, Pub. L. No. 110-325, ' 2, 122 Stat. 3553, 3554.

Definition of Disablity

There is virtually no difference between the definition of “disability” under the original ADA and the new legislation. A “disability” may arise under any of the following three prongs:

• A physical or mental impairment that substantially limits one or more major life activities of such individual;
• A record of such an impairment; or
• Being regarded as having such an impairment '

Pub. L. No. 110-325, ' 4, 122 Stat. 3553, 3555. The meaning of “substantially limits” and “major life activities” has been the subject of much litigation since the passage of the ADA. Two Supreme Court decisions that attempted to give content to these terms have been particularly called into question, so much so that they are cited with disapproval in the findings and purposes of the ADAAA. See Pub. L. No. 110-325, ' 2, 122 Stat. 3553, 3553-54.

The Two Rulings in Question

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court addressed what must be proven to establish a substantial limitation on the major life activity of performing manual tasks. See 534 U.S. 184 (2002). Ms. Williams had claimed that her carpal tunnel syndrome and related impairments substantially limited her ability to perform manual tasks at an automobile manufacturing plant. Such tasks included the use of pneumatic tools, and wiping cars with highlight oil. The Supreme Court found that the legislative intent of the ADA required that “major life activity” and “substantially limits” “be interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 197. Given Congress's explicit finding in the ADA that approximately 43 million Americans suffered from disabilities, the Court noted that the ADA could not possibly cover every person with an impairment limiting the performance of isolated and specialized manual tasks. The major life activity of performing manual tasks must comprise a “variety of tasks central to most people's daily lives” like household chores and brushing one's teeth ' not merely the tasks central to performing a particular job. Id. at 200-201.

The other case targeted by the ADAAA is Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). The Sutton sisters had applied for pilot positions at United Air Lines, but were rejected because they did not meet the company's minimum uncorrected vision requirement. The sisters did have vision rated at 20/20 or better when wearing corrective lenses. The Suttons had alleged that severe myopia constitutes a disability under the ADA or that their condition had been “regarded as” a disability by the airline. Given the ADA's definition of “disability” as a “physical or mental impairment that substantially limits one or more major life activities of an individual,” the Court held that an individual can only be disabled under this prong if her impairment is presently limiting ' not potentially limiting when corrective measures are disregarded. 527 U.S. at 482 (emphases added). Sutton also relied upon Congress' finding that 43 million individuals were disabled at the time of passage: If Congress had intended the ADA to cover every individual whose impairment is corrected, it would have found more than 43 million “disabled” Americans. See Id. at 487.

Sutton also held that United could not have regarded the sisters' impairment as substantially limiting the “major life activity” of “working.” See Id. at 491. The Suttons had alleged that United's vision requirement was based upon the company's misunderstanding that individuals with severe myopia are substantially limited in the ability to fly airliners. The Court held that the phrase “substantially limits” requires that an individual in the Suttons' position show that an employer's misunderstanding precluded her from a substantial class of jobs ' not merely a single job or even a single type of job. See Id. at 491-93.

With the ADAAA, Congress set out to supersede the following major points of law: 1) Sutton's holding that a disability is to be determined “with reference to ameliorative effects of mitigating measures”; 2) Sutton's holding that the “regarded as” prong is not met unless the plaintiff shows that his perceived impairment substantially limits a major life activity; and 3) Toyota's strict and demanding standard for qualifying as disabled. See Pub. L. No. 110-325, ' 2, 122 Stat. 3553, 3553-54. The ADAAA appears likely to achieve these purposes, but new problems are foreseeable.

The ADAAA and Disability

Responding to Toyota's strict and demanding standard, the ADAAA announces that “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Id. at ' 2, 122 Stat. at 3554. The “disability” term “shall be construed in favor of broad coverage of individuals under this Act.” Id. at ' 4, 122 Stat. at 3555. The ADAAA also omits Congress' original finding of 43 million disabled Americans, which Toyota and Sutton had used to narrow the ADA's coverage. See Id. at ' 3, 122 Stat. at 3554-55. Further expanding coverage, the ADAAA provides a non-exclusive list of 29 “major life activities,” including a number of major bodily functions (“normal cell growth,” “reproductive functions,” etc.). Id. at ' 4, 122 Stat. at 3555.

Responding to Sutton, the ADAAA requires courts to disregard corrective measures such as medication, medical supplies, prosthetics, hearing aids, assistive technology, and “learned behavioral or adaptive neurological modifications,” yet would require courts to consider the effect of ordinary eyeglasses or contact lenses. Id. This addresses the criticism that disabled individuals were being “punished” for their success in mitigating their disabilities, but it presents two problems: 1) Courts and employers will now have to speculate about whether an employee would have an impairment that substantially limits a major life activity if no mitigating measures had been used; and 2) any negative side effects caused by mitigating measures should not logically be considered in making the same determination. The majority in Sutton had mentioned both of these potential problems as reasons for considering the effect of mitigating measures. See 527 U.S. at 483-84. Some employment lawyers wonder how employers and courts should go about making the hypothetical medical judgments that the ADAAA seems to require in some cases.

The 'Regarded As' Prong

Responding to Sutton's treatment of the “regarded as” prong, the law maintains the requirement that a plaintiff prove that an employer subjected him to discriminatory action based on an actual or perceived impairment ' but this impairment need no longer limit a major life activity or be perceived to limit the same. The “regarded as” prong does not apply, however, when an employer regards an employee as having only a “transitory and minor” impairment. Id. “A transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Id. “Minor” is undefined; this will probably increase ADA litigation.

Conclusion

Overall, the ADAAA is almost certain to liberalize judicial construction of the ADA. This will provide protection to disabled Americans who had previously managed to fall through the ADA's cracks, and perhaps some unnecessary protection to Americans who cannot reasonably be considered disabled under the common meaning of the term. Most of all, the ADAAA will be a source of legal uncertainty for employers until the courts have the occasion to clarify certain key provisions.

Jonathan Cohen is an associate in the Employment & Employee Relations practice group of Post & Schell, PC, Philadelphia. For more information about the ADA Amendments Act, contact him at [email protected] or at 215-587-1141.

On Sept. 25, 2008, President Bush signed the ADA Amendments Act of 2008 (“ADAAA”) into law. This update to the Americans with Disabilities Act (“ADA”) was approved unanimously by both Houses of Congress, and received the support of business organizations such as the United States Chamber of Commerce and the National Association of Manufacturers. The new law will take effect on Jan. 1, 2009.

Background

Since 1990, the ADA has prohibited employers from discriminating against employees because of a disability, and has mandated that they provide workplace accommodations to covered individuals. See 42 U.S.C. ' 12112(a). When the ADA was signed into law by President George H.W. Bush, it was widely considered a milestone for civil rights in this country. Congress had found that approximately 43 million Americans were suffering from disabilities. ' 12101(a)(1). These disabilities had historically resulted in isolation, discrimination, and powerlessness among those afflicted. See ' 12101(a).

In the 17 years after passage, however, some legislators had grown irritated over the Supreme Court's application of the ADA. Courts had held individuals with seemingly disabling health problems such as epilepsy, diabetes, cerebral palsy, and muscular dystrophy not to be “disabled” under the ADA. The ADAAA was intended to restore the “broad scope of protection” originally contemplated by the original law. ADA Amendments Act of 2008, Pub. L. No. 110-325, ' 2, 122 Stat. 3553, 3554.

Definition of Disablity

There is virtually no difference between the definition of “disability” under the original ADA and the new legislation. A “disability” may arise under any of the following three prongs:

• A physical or mental impairment that substantially limits one or more major life activities of such individual;
• A record of such an impairment; or
• Being regarded as having such an impairment '

Pub. L. No. 110-325, ' 4, 122 Stat. 3553, 3555. The meaning of “substantially limits” and “major life activities” has been the subject of much litigation since the passage of the ADA. Two Supreme Court decisions that attempted to give content to these terms have been particularly called into question, so much so that they are cited with disapproval in the findings and purposes of the ADAAA. See Pub. L. No. 110-325, ' 2, 122 Stat. 3553, 3553-54.

The Two Rulings in Question

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court addressed what must be proven to establish a substantial limitation on the major life activity of performing manual tasks. See 534 U.S. 184 (2002). Ms. Williams had claimed that her carpal tunnel syndrome and related impairments substantially limited her ability to perform manual tasks at an automobile manufacturing plant. Such tasks included the use of pneumatic tools, and wiping cars with highlight oil. The Supreme Court found that the legislative intent of the ADA required that “major life activity” and “substantially limits” “be interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 197. Given Congress's explicit finding in the ADA that approximately 43 million Americans suffered from disabilities, the Court noted that the ADA could not possibly cover every person with an impairment limiting the performance of isolated and specialized manual tasks. The major life activity of performing manual tasks must comprise a “variety of tasks central to most people's daily lives” like household chores and brushing one's teeth ' not merely the tasks central to performing a particular job. Id. at 200-201.

The other case targeted by the ADAAA is Sutton v. United Air Lines, Inc. , 527 U.S. 471 (1999). The Sutton sisters had applied for pilot positions at United Air Lines, but were rejected because they did not meet the company's minimum uncorrected vision requirement. The sisters did have vision rated at 20/20 or better when wearing corrective lenses. The Suttons had alleged that severe myopia constitutes a disability under the ADA or that their condition had been “regarded as” a disability by the airline. Given the ADA's definition of “disability” as a “physical or mental impairment that substantially limits one or more major life activities of an individual,” the Court held that an individual can only be disabled under this prong if her impairment is presently limiting ' not potentially limiting when corrective measures are disregarded. 527 U.S. at 482 (emphases added). Sutton also relied upon Congress' finding that 43 million individuals were disabled at the time of passage: If Congress had intended the ADA to cover every individual whose impairment is corrected, it would have found more than 43 million “disabled” Americans. See Id. at 487.

Sutton also held that United could not have regarded the sisters' impairment as substantially limiting the “major life activity” of “working.” See Id. at 491. The Suttons had alleged that United's vision requirement was based upon the company's misunderstanding that individuals with severe myopia are substantially limited in the ability to fly airliners. The Court held that the phrase “substantially limits” requires that an individual in the Suttons' position show that an employer's misunderstanding precluded her from a substantial class of jobs ' not merely a single job or even a single type of job. See Id. at 491-93.

With the ADAAA, Congress set out to supersede the following major points of law: 1) Sutton's holding that a disability is to be determined “with reference to ameliorative effects of mitigating measures”; 2) Sutton's holding that the “regarded as” prong is not met unless the plaintiff shows that his perceived impairment substantially limits a major life activity; and 3) Toyota's strict and demanding standard for qualifying as disabled. See Pub. L. No. 110-325, ' 2, 122 Stat. 3553, 3553-54. The ADAAA appears likely to achieve these purposes, but new problems are foreseeable.

The ADAAA and Disability

Responding to Toyota's strict and demanding standard, the ADAAA announces that “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Id. at ' 2, 122 Stat. at 3554. The “disability” term “shall be construed in favor of broad coverage of individuals under this Act.” Id. at ' 4, 122 Stat. at 3555. The ADAAA also omits Congress' original finding of 43 million disabled Americans, which Toyota and Sutton had used to narrow the ADA's coverage. See Id. at ' 3, 122 Stat. at 3554-55. Further expanding coverage, the ADAAA provides a non-exclusive list of 29 “major life activities,” including a number of major bodily functions (“normal cell growth,” “reproductive functions,” etc.). Id. at ' 4, 122 Stat. at 3555.

Responding to Sutton, the ADAAA requires courts to disregard corrective measures such as medication, medical supplies, prosthetics, hearing aids, assistive technology, and “learned behavioral or adaptive neurological modifications,” yet would require courts to consider the effect of ordinary eyeglasses or contact lenses. Id. This addresses the criticism that disabled individuals were being “punished” for their success in mitigating their disabilities, but it presents two problems: 1) Courts and employers will now have to speculate about whether an employee would have an impairment that substantially limits a major life activity if no mitigating measures had been used; and 2) any negative side effects caused by mitigating measures should not logically be considered in making the same determination. The majority in Sutton had mentioned both of these potential problems as reasons for considering the effect of mitigating measures. See 527 U.S. at 483-84. Some employment lawyers wonder how employers and courts should go about making the hypothetical medical judgments that the ADAAA seems to require in some cases.

The 'Regarded As' Prong

Responding to Sutton's treatment of the “regarded as” prong, the law maintains the requirement that a plaintiff prove that an employer subjected him to discriminatory action based on an actual or perceived impairment ' but this impairment need no longer limit a major life activity or be perceived to limit the same. The “regarded as” prong does not apply, however, when an employer regards an employee as having only a “transitory and minor” impairment. Id. “A transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Id. “Minor” is undefined; this will probably increase ADA litigation.

Conclusion

Overall, the ADAAA is almost certain to liberalize judicial construction of the ADA. This will provide protection to disabled Americans who had previously managed to fall through the ADA's cracks, and perhaps some unnecessary protection to Americans who cannot reasonably be considered disabled under the common meaning of the term. Most of all, the ADAAA will be a source of legal uncertainty for employers until the courts have the occasion to clarify certain key provisions.

Jonathan Cohen is an associate in the Employment & Employee Relations practice group of Post & Schell, PC, Philadelphia. For more information about the ADA Amendments Act, contact him at [email protected] or at 215-587-1141.