Practical Implications of ADA Amendments

On September 25, 2008, The Americans with Disabilities Act (ADA-AA) was signed into law by President Bush. The law's effective date is January 1, 2009. The ADA-AA was created in response to several United States Supreme Court cases where the court's interpretation of the ADA limited the protection that the ADA was supposed to guarantee disabled Americans. The Supreme Court's rigid construction of the terms "disability" and "substantially limits a major life activity" significantly restricted the reliance on the ADA by disabled Americans in providing equal employment opportunities.

A substantial change the ADA-AA creates is that it overrules Sutton v. United Air Lines, Inc., 527 U.S. 471 (1991), which required consideration of "mitigating measures" in determining whether an individual has a disability to receive protection under the ADA. This means that a disability is assessed without considering mitigating measures, such as whether an individual is taking medication, or using a device that aids in limiting the effects of the disability or fully corrects the impairment. An employer cannot use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected disability. However, if it is job-related and consistent with business necessity, then a disability may be assessed in light of the measure.

Additionally, the ADA-AA clarifies that the courts' previous interpretations of the term "substantially limits" (in the phrase "substantially limits a major life activity") were too restrictive. Instead, "significantly restricted" is a broader standard and is the appropriate analysis to use. Also, the ADA-AA broadens the definition of "major life activity" by using all the examples in the EEOC regulation and provides a non-exhaustive list that includes major bodily functions, such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions."

Moreover, the ADA-AA clarifies that the fact that an otherwise substantially limiting impairment is in remission or episodic does not remove the individual from coverage. Instead, an impairment is substantially limiting "if it would substantially limit a major life activity when active." Further, impact on only one major life activity is required. In addition, the new statutory language clarifies that an individual is not excluded from coverage under the ADA because of an ability to do many things, as long as the individual is substantially limited in one major life activity.

Also significant is the ADA-AA eliminates the requirement that an individual asserting a "regarded as" claim show that s/he has an impairment that substantially limits a major life activity. Thus, "regarded-as" claims are only mandated to show an actual or perceived impairment. There is no requirement that the impairment is limiting in any way (either actually or perceived), as long as it is not both transitory (i.e., lasting less than 6 months) and minor. However, a "regarded as" claim is no longer allowed with a failure to accommodate claim. Finally, the ADA-AA specifically directs the courts to interpret the ADA as a remedial statute (i.e. liberally); and to broadly interpret "disability."

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to www.passmanandkaplan.com

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