The Revised Americans with Disabilities Act

Both Supreme Court cases involved the definition of “disability” under the ADA, which provides that a person is “disabled” if he or she has a physical or mental impairment that substantially limits one or more major life activities. These court decisions made it more difficult for employees to prove that they were “disabled” under the Act.

Sutton v. United Air Lines, Inc.

The first decision, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), involved two individuals with myopic vision who were rejected for positions as commercial airline pilots. Their vision was completely correctable with eyeglasses. The Court held that a determination of whether an individual is disabled should take into account any corrective measures that the individual utilizes for his or her condition. As such, because their medical conditions were correctable with glasses, the Supreme Court held that the applicants in this case were not “disabled” under the ADA. This decision had a significant impact on the landscape of disability law in that the disability determination now took into account mitigating measures, such as prosthetic limbs, medication, and cochlear implants. If the employees' condition could be corrected by these measures, they were not considered disabled and, as such, did not receive the protection of the ADA.

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

The second case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), involved an employee with carpal tunnel syndrome whose employment was terminated due to poor attendance. She sued her employer, claiming that it had failed to reasonably accommodate her medical condition. The employer claimed that the employee had not proven that her medical condition substantially impaired a major life activity and, thus, did not have a disability within the meaning of the ADA. The appellate court disagreed and held that because the employee's condition limited a class of manual tasks affecting her ability to work, she had met the definition of an individual with a disability under the ADA. The Supreme Court reversed, holding when an employee claims to be disabled because he or she is substantially limited in the major life activity of working, the employee must be unable to work in a broad, not narrow, class of jobs.

As a result of these two decisions, as well as subsequent lower court decisions interpreting them, the analysis of a disability discrimination claim has primarily centered on whether a plaintiff was “disabled.” Consequently, plaintiffs often fail to satisfy that baseline requirement and courts never even reach the issue of whether an employer discriminated against the employee or failed to make reasonable accommodation.

ADAAA

The sponsors of the ADAAA sought to change the focus of the inquiry from whether an individual is disabled under the standards announced in Sutton and Toyota to whether the employer has satisfied its legal obligations to the employee. They believed that the Supreme Court's decisions in Sutton and Toyota did not give appropriate weight to the stated purposes of the ADA upon its enactment in 1990. Therefore, they sought to amend the ADA and, in doing so, to reject the holdings of Sutton and Toyota through legislation. The resulting amendments will alter disability discrimination law in several major ways.

While the ADAAA contains many specific changes to disability discrimination law, it also contains an overarching mandate that courts should broadly construe the ADA when determining whether an individual is “disabled.” As a result, it is expected to be more difficult for employers to obtain dismissal of disability discrimination early in the process, leading to more cases surviving summary judgment and being put in the hands of juries.

More 'Major Life Activities'

As discussed above, the ADA defines a “disability” as a physical or mental impairment substantially limiting one or more major life activities. While the ADAAA has not changed this definition, it does provide a non-exhaustive list of “major life activities” for courts to consider, something that was not included in the ADA. They include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This list expands upon the categories of major life activities that have been recognized in more than 15 years of court decisions. [Note, an earlier version of the ADAAA would have actually defined "substantially limited" in the text of the law as "materially restricts." This change did not make it into the final version signed by President Bush.]

Conditions in Remission or of an Episodic Nature

Under many court decisions interpreting the ADA, a medical condition that was episodic or in remission would not be deemed to constitute a disability. Accordingly, an employee whose cancer was in remission at the time of an adverse employment action would not be considered “disabled” because, at that point, the employee was not substantially limited in a major life activity. The ADAAA changes this by providing that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Thus, for example, cancer may qualify as a disability even when it is dormant, as long as it would so qualify when active.

Mitigating Measures Must Be Disregarded

In response to Sutton, the ADAAA also precludes courts from factoring in mitigating measures when analyzing whether an individual is “disabled.” The only exceptions are ordinary eyeglasses and contact lenses. This means, for example, that an individual with a condition that satisfies the definition of “disability,” such as, for example, diabetes that can be completely controlled by medication is still considered “disabled” under the ADAAA.

'Regarded As'

Under the ADA, an individual who is “regarded as” having a disability is entitled to protection under the Act. However, the ADA does not further explain this concept. Courts have interpreted the “regarded as” theory of disability discrimination as requiring the employee to prove that the employer believed, in error, that an employee had an impairment that substantially limited a major life activity. Under the ADAAA, however, an individual will be regarded as disabled “if the individual establishes that he or she has been subjected to an action prohibited under this Act 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.” Accordingly, so long as an employee can prove he or she was discriminated against because the employer regarded him or her as disabled, it does not matter whether the impairment, if real, would limit a major life activity or whether the employer actually believed that the impairment would cause such a limitation.

The ADAAA does clarify two other aspects of the “regarded as” theory of disability in a manner helpful to employers. First, the ADAAA states that an individual cannot be “regarded as” having an impairment that is transitory and minor, i.e., one with an expected duration of six months or less. Moreover, the ADAAA explicitly states that an employer does not have to provide reasonable accommodation to an individual who is “regarded as” having a disability.

Steps Employers Should Take Now

Prior to the Jan. 1, 2009, effective date of the ADAAA, employers should take affirmative steps to ensure they fully understand its new requirements. Because the scope of impairments likely to be deemed disabilities has been broadened greatly by the amendments, employers should expect that they will be called upon more frequently to assess requests and make reasonable accommodations. The changes wrought by the ADAAA will no doubt mean that concepts such as essential job functions, reasonable accommodations, and undue burden will become the basis for court decisions on a much more frequent basis.

When an employee requests a reasonable accommodation, an employer must be prepared to engage in the interactive process required by the ADA. Indeed, courts have held that the employer's obligations may be triggered even absent a request from the employee if the employer knew or should have known that the employee had a disability warranting an accommodation, including, for example, if the job performance of an employee with a medical condition takes a sudden turn for the worse. The interactive process involves a good faith exchange of ideas between the employer and the employee and perhaps the employee's physician as to how the employee's disability may be accommodated. Contemporaneous, accurate and complete documentation of the entire interactive process will be key to defending an ADA claim. It is also important to have job descriptions in place that accurately list the essential functions of the position.

Although employers often have a knee-jerk reaction that a requested accommodation will be unduly burdensome, they must understand that this is can be a high standard to meet that takes into consideration the resources of the entire company, not just a particular department. Moreover, because as a result of the ADAAA it is expected that more disability discrimination cases will go to trial, employers should bear in mind that a jury may ultimately be the final arbiter of what would or would not pose an undue burden for the company.

As the ADAAA's effective date is on the horizon, employers should have a renewed focus on properly addressing disabilities in the workplace and must ensure that those who will be handling these matters are properly trained and knowledgeable about what is required. Even front line supervisors should receive training on the ADAAA so that they can spot and properly respond in the first instance to issues involving disabled or potentially disabled workers and notify the appropriate resources at the company. Taking these steps will put employers in a far better position to defend claims that may ultimately be brought.

Beverly W. Garofalo is the managing partner of the Hartford, CT, office of Jackson Lewis LLP. She practices employment law on behalf of management and regularly counsels employers on a wide range of employment issues. She may be reached at [email protected]. Sally D. Welch is an associate in the same office.

Since its enactment in 1990, many courts, including the United States Supreme Court, have narrowly construed the provisions of the Americans with Disabilities Act (“ADA”). As a result, employers have grown accustomed to prevailing in ADA lawsuits. Indeed, it has been reported that they have done so approximately 95% of the time. With the enactment of the ADA Amendments Act of 2008 (“ADAAA”), this is bound to change. As a result, employers must understand the ADAAA and the impact the new law will have on their workplace.

Supreme Court Decisions

The ADAAA, which takes effect in January 2009, took aim at two United States Supreme Court decisions rendered during the last decade that were viewed as substantially limiting the scope of covered disabilities under the ADA. These decisions restricted the circumstances under which employees could avail themselves of the protection of the ADA, and consequently led to the dismissal of many disability discrimination cases at the earliest stages of litigation.

Both Supreme Court cases involved the definition of “disability” under the ADA, which provides that a person is “disabled” if he or she has a physical or mental impairment that substantially limits one or more major life activities. These court decisions made it more difficult for employees to prove that they were “disabled” under the Act.

Sutton v. United Air Lines, Inc.

The first decision, Sutton v. United Air Lines, Inc. , 527 U.S. 471 (1999), involved two individuals with myopic vision who were rejected for positions as commercial airline pilots. Their vision was completely correctable with eyeglasses. The Court held that a determination of whether an individual is disabled should take into account any corrective measures that the individual utilizes for his or her condition. As such, because their medical conditions were correctable with glasses, the Supreme Court held that the applicants in this case were not “disabled” under the ADA. This decision had a significant impact on the landscape of disability law in that the disability determination now took into account mitigating measures, such as prosthetic limbs, medication, and cochlear implants. If the employees' condition could be corrected by these measures, they were not considered disabled and, as such, did not receive the protection of the ADA.

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

The second case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams , 534 U.S. 184 (2002), involved an employee with carpal tunnel syndrome whose employment was terminated due to poor attendance. She sued her employer, claiming that it had failed to reasonably accommodate her medical condition. The employer claimed that the employee had not proven that her medical condition substantially impaired a major life activity and, thus, did not have a disability within the meaning of the ADA. The appellate court disagreed and held that because the employee's condition limited a class of manual tasks affecting her ability to work, she had met the definition of an individual with a disability under the ADA. The Supreme Court reversed, holding when an employee claims to be disabled because he or she is substantially limited in the major life activity of working, the employee must be unable to work in a broad, not narrow, class of jobs.

As a result of these two decisions, as well as subsequent lower court decisions interpreting them, the analysis of a disability discrimination claim has primarily centered on whether a plaintiff was “disabled.” Consequently, plaintiffs often fail to satisfy that baseline requirement and courts never even reach the issue of whether an employer discriminated against the employee or failed to make reasonable accommodation.

ADAAA

The sponsors of the ADAAA sought to change the focus of the inquiry from whether an individual is disabled under the standards announced in Sutton and Toyota to whether the employer has satisfied its legal obligations to the employee. They believed that the Supreme Court's decisions in Sutton and Toyota did not give appropriate weight to the stated purposes of the ADA upon its enactment in 1990. Therefore, they sought to amend the ADA and, in doing so, to reject the holdings of Sutton and Toyota through legislation. The resulting amendments will alter disability discrimination law in several major ways.

While the ADAAA contains many specific changes to disability discrimination law, it also contains an overarching mandate that courts should broadly construe the ADA when determining whether an individual is “disabled.” As a result, it is expected to be more difficult for employers to obtain dismissal of disability discrimination early in the process, leading to more cases surviving summary judgment and being put in the hands of juries.

More 'Major Life Activities'

As discussed above, the ADA defines a “disability” as a physical or mental impairment substantially limiting one or more major life activities. While the ADAAA has not changed this definition, it does provide a non-exhaustive list of “major life activities” for courts to consider, something that was not included in the ADA. They include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This list expands upon the categories of major life activities that have been recognized in more than 15 years of court decisions. [Note, an earlier version of the ADAAA would have actually defined "substantially limited" in the text of the law as "materially restricts." This change did not make it into the final version signed by President Bush.]

Conditions in Remission or of an Episodic Nature

Under many court decisions interpreting the ADA, a medical condition that was episodic or in remission would not be deemed to constitute a disability. Accordingly, an employee whose cancer was in remission at the time of an adverse employment action would not be considered “disabled” because, at that point, the employee was not substantially limited in a major life activity. The ADAAA changes this by providing that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Thus, for example, cancer may qualify as a disability even when it is dormant, as long as it would so qualify when active.

Mitigating Measures Must Be Disregarded

In response to Sutton, the ADAAA also precludes courts from factoring in mitigating measures when analyzing whether an individual is “disabled.” The only exceptions are ordinary eyeglasses and contact lenses. This means, for example, that an individual with a condition that satisfies the definition of “disability,” such as, for example, diabetes that can be completely controlled by medication is still considered “disabled” under the ADAAA.

'Regarded As'

Under the ADA, an individual who is “regarded as” having a disability is entitled to protection under the Act. However, the ADA does not further explain this concept. Courts have interpreted the “regarded as” theory of disability discrimination as requiring the employee to prove that the employer believed, in error, that an employee had an impairment that substantially limited a major life activity. Under the ADAAA, however, an individual will be regarded as disabled “if the individual establishes that he or she has been subjected to an action prohibited under this Act 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.” Accordingly, so long as an employee can prove he or she was discriminated against because the employer regarded him or her as disabled, it does not matter whether the impairment, if real, would limit a major life activity or whether the employer actually believed that the impairment would cause such a limitation.

The ADAAA does clarify two other aspects of the “regarded as” theory of disability in a manner helpful to employers. First, the ADAAA states that an individual cannot be “regarded as” having an impairment that is transitory and minor, i.e., one with an expected duration of six months or less. Moreover, the ADAAA explicitly states that an employer does not have to provide reasonable accommodation to an individual who is “regarded as” having a disability.

Steps Employers Should Take Now

Prior to the Jan. 1, 2009, effective date of the ADAAA, employers should take affirmative steps to ensure they fully understand its new requirements. Because the scope of impairments likely to be deemed disabilities has been broadened greatly by the amendments, employers should expect that they will be called upon more frequently to assess requests and make reasonable accommodations. The changes wrought by the ADAAA will no doubt mean that concepts such as essential job functions, reasonable accommodations, and undue burden will become the basis for court decisions on a much more frequent basis.

When an employee requests a reasonable accommodation, an employer must be prepared to engage in the interactive process required by the ADA. Indeed, courts have held that the employer's obligations may be triggered even absent a request from the employee if the employer knew or should have known that the employee had a disability warranting an accommodation, including, for example, if the job performance of an employee with a medical condition takes a sudden turn for the worse. The interactive process involves a good faith exchange of ideas between the employer and the employee and perhaps the employee's physician as to how the employee's disability may be accommodated. Contemporaneous, accurate and complete documentation of the entire interactive process will be key to defending an ADA claim. It is also important to have job descriptions in place that accurately list the essential functions of the position.

Although employers often have a knee-jerk reaction that a requested accommodation will be unduly burdensome, they must understand that this is can be a high standard to meet that takes into consideration the resources of the entire company, not just a particular department. Moreover, because as a result of the ADAAA it is expected that more disability discrimination cases will go to trial, employers should bear in mind that a jury may ultimately be the final arbiter of what would or would not pose an undue burden for the company.

As the ADAAA's effective date is on the horizon, employers should have a renewed focus on properly addressing disabilities in the workplace and must ensure that those who will be handling these matters are properly trained and knowledgeable about what is required. Even front line supervisors should receive training on the ADAAA so that they can spot and properly respond in the first instance to issues involving disabled or potentially disabled workers and notify the appropriate resources at the company. Taking these steps will put employers in a far better position to defend claims that may ultimately be brought.

Beverly W. Garofalo is the managing partner of the Hartford, CT, office of Jackson Lewis LLP. She practices employment law on behalf of management and regularly counsels employers on a wide range of employment issues. She may be reached at [email protected]. Sally D. Welch is an associate in the same office.