70 The Alabama Lawyer 39 (2009). The New and Expanded Americans with Disabilities Act.

• Author: BY SANDRA B. REISS and J. TRENT SCOFIELD

The Alabama Lawyer

2009.

70 The Alabama Lawyer 39 (2009).

The New and Expanded Americans with Disabilities Act

The New and Expanded Americans with Disabilities ActBY SANDRA B. REISS and J. TRENT SCOFIELDIntroduction

January 1, 2009 marks both the start of a new year and the effective date regarding substantial amendments to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. On September 25, 2008, President George W. Bush signed into law S. 3406, the ADA Amendments Act of 2008, or "ADAAA." The original ADA was signed into law by President H.W. Bush on July 26, 1990. The ADAAA will protect a much broader percentage of the workforce and may well fundamentally alter employee relations with regard to persons with disabilities.

Legislative proponents believe that the ADAAA reflects what the original ADA was intended to affect, while others argue that the amendments have reached far beyond the original intent of the Act. Either way, the ADAAA contains significant changes in not only the definition "disability," but also the definition "major life activity," as well as how persons "regarded as" disabled will be treated in the workplace.

The ADAAA responds to the increasingly narrow interpretation given the terms "disability," "major life activity" and other terms of art by federal courts since the ADA's passage. Legislative proponents note that, in 2004, plaintiffs lost 97 percent of the ADA employment discrimination claims that actually made it to trial, often due to the interpretation of the definition of the term "disability." In the findings published with the ADAAA, the drafters stated, "While Congress expected that the definition of disability under the ADA would be interpreted consistently with how the courts applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not be fulfilled."(fn1)

The original ADA applies to employers with 15 or more employees and aids in protecting an individual with a disability that substantially limits a major life activity who can perform the essential functions of his or her job with or without reasonable accommodation(s) that do not constitute an undue hardship. In determining the meaning of the many highlighted terms contained in the statement above, practitioners have long had to rely on the accompanying Regulations to Implement the Equal Employment Provisions of the American with Disabilities Act, 29 C.F.R. § 1630 and the Appendix to Section 1630 - "Interpretive Guidance on Title I of the Americans With Disabilities Act" drafted by the Equal Employment Opportunity Commission ("EEOC"). However, despite the regulations and the EEOC's Interpretive Guidance, this long statement of the ADA has many caveats developed by the courts over the last 18 years.

Specifically, Congress was most displeased with the whittled down definition of disability by the Supreme Court in a number of employment cases including Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184 (2002) and specifically referred to these cases in the findings to the ADAAA. In Sutton, the Supreme Court ruled that employers were allowed to consider mitigating measures such as medicines and other devices in determining whether an individual was substantially limited in a major life activity. In Toyota Manufacturing, the Supreme Court ruled that an individual must show his/her impairments prevent or severely restrict an ability to perform activities of...