The ADA Amendments Act of 2008: practical implications for employers in 2012 and beyond.

• Author: Smith, Lawrence D.

1. Background

   On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 ("ADA Amendments").l Proponents of the ADA Amendments argued the legislation was needed to breathe new life into the Americans with Disabilities Act ("ADA") following more than a decade of federal court decisions that significantly narrowed the scope of what qualified as a "disability" under the law. A narrow definition of "disability" frequently led judges to dismiss ADA cases against employers before trial. In fact, one study indicates that employers prevailed in at least 93 percent of all ADA employment discrimination cases each year from 1998 through 2007. (2) In some years, such as 2003, employers' win rate was as high as 98 percent. (3) Most of these cases were dismissed before trial on the grounds that the plaintiff did not meet the definition of "disabled" under the ADA. (4) The ADA Amendments aim to reverse this trend by lowering the high bar set by courts for an employee to prove that he or she is disabled, and, therefore, entitled to invoke the protections of the ADA.

2. Re-Defining "Disability": From a "Demanding Standard" (5) to "Broad Coverage" (6)

   1. Overview

      The ADA prohibits employers from discriminating against qualified individuals with a disability and requires employers to make reasonable accommodation for disabled employees if the accommodation can be made without undue hardship to the employer. (7) An employee is "disabled" under the ADA if he or she: (1) has an impairment that substantially limits one or more major life activities; or (2) has a record of having such an impairment; or (3) is regarded as having such an impairment. (8) The ADA Amendments seek to significantly expand the class of individuals who may bring claims under the ADA by (1) changing the definition of what is a "major life activity"; (2) changing the way courts interpret the term "substantially limits"; and (3) requiring courts to ignore the ameliorative effects of any mitigating measures an employee uses to cope with his or her impairment when determining whether the employee has a "disability." (9)

      Furthermore, the ADAAA and its final regulations emphasize that employees should not focus on whether the employee has a qualifying disability. Instead, employers should focus on meeting their obligations to reasonably accommodate an employee and engage in the interactive process. The final regulations specifically provide that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. (10) The interpretive guidance to the final regulations emphasizes this by noting that the focus of attention in cases under the ADA should be whether entities have complied with their obligations, not whether the individual meets the definition of disability. (11)

   2. Additions to the list of "major life activities"

      The ADA Amendments significantly broaden the definition of "disability" by expanding the list of "major life activities." The original ADA did not specifically define "a major life activity" under the Act. Before the ADA Amendments, the Equal Employment Opportunity Commission's (EEOC's) interpretive regulations contained a brief list of examples of "major life activities" that included "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." (12) While the regulations did not limit the definition of "major life activities" to those enumerated, many courts refused to consider limitations on activities dissimilar to those specifically listed in determining whether an individual had a covered "disability."

      Pursuant to the amendments, a more comprehensive list of "major life activities" is now expressly included in the statutory language of the ADA. Major life activities now include all of the activities contained in the former EEOC regulations listed above with the addition of "eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating." (13) Further, the definition of "major life activities" now includes any impairment affecting "major bodily functions" such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." (14) The addition of these "major bodily functions" to the list of ADA-covered impairments likely means that forms of some diseases and impairments such as epilepsy, diabetes, cancer, hearing loss, depression, multiple sclerosis, mental retardation, Hepatitis B, muscular dystrophy, and dyslexia will now be disabilities automatically covered by the ADA.

   3. Broadening the interpretation of "substantially limits"

      Much of the debate in Congress regarding modification of "disability" centered on the way courts and the EEOC have interpreted the term "substantially limits." Before the enactment of the ADA Amendments, federal courts and the EEOC interpreted "substantially limits" to mean "severely restrict[ed]." (15) Under this interpretation, judges dismissed numerous claims on the grounds that an employee's impairment was not severe enough to warrant coverage under the ADA. Although Congress ultimately decided to retain the term "substantially limits" in the ADA, it instructed the EEOC to re-write the ADA's interpreting regulations and mandated that courts construe the term "substantially limits" in a manner consistent with the ADA's "broad scope of protection." (16)

      On June 17, 2009, the EEOC adopted proposed regulations, an initial stage in the regulatory process, and invited comments on the proposed rules. Following consideration of over 600 written comments and four "town hall listening sessions," the EEOC issued final regulations March 25, 2011, which took effect May 24, 2011. Section 1630.2(g)(1)(ii) of the final rule provides that an impairment is a disability if it substantially limits a major life activity. (17) The final rule states that to be "substantially limiting," an impairment need not severely restrict performance or a major life activity. The regulation also sets forth rules of construction in section 1630.2(j)(1). (18)

      In addition to ordering the EEOC to draft new regulations regarding this term, the revised ADA now specifically states that in considering whether an impairment that is merely episodic or is in remission "substantially limits" a "major life activity," courts must find that the impairment is a disability if the impairment would "substantially limit" a "major life activity" when the impairment is "active." (19) For instance, if an employee has cancer that is in remission, when evaluating whether the employee is "disabled" under the ADA, employers and courts must now consider whether the employee's cancer would "substantially limit" a "major life activity" of the employee if the cancer were in its active state; the fact that the employee has no apparent effects from the cancer when it is in remission can no longer be considered when determining whether such an employee has a qualifying "disability" under the law.

   4. Eliminating consideration of "mitigating measures"

      A third change in the definition of the term "disability" reverses a 1999 U.S. Supreme Court decision that allowed courts to consider the "ameliorative" effects of "mitigating measures" when determining whether an employee had an ADA-covered "disability." (20) Under the amended ADA, courts may no longer consider the mitigating effects that medications or other medical devices such as prosthetics and hearing aids, or other forms of "assistive technology," might have on an employee's impairment when deciding whether that impairment "substantially limits" the employee in a "major life activity." (21) Similarly, courts may also not consider the mitigating effects that any "reasonable accommodation" or "learned behavioral or adaptive neurological modifications" might have in reducing or eliminating the actual impact of an employee's impairment when making a disability determination. (22) The single exception to this rule is that an employee's use of "ordinary eyeglasses or contact lenses" may be considered. (23)

   5. Overhauling "regarded as" disability claims

      In addition to the changes intended to overhaul the way courts construe the terms "substantially limited" and "major life activity," the ADA Amendments also make it easier for employees to successfully claim they were regarded as being disabled by their employer. Before the ADA amendments, an employee had to show that his or her employer perceived the employee to be "substantially limited" in one or more "major life activities" in order to prevail on a "regarded as" claim. Under the amendments, an employee must now simply show that his or her employer believed that the employee had an "impairment." (24) In other words, it no longer matters whether the employer believes that an employee's perceived impairment "substantially limits" the employee's ability to function; an employer will be liable if an employee is able to show discriminatory treatment by his or her employer "on the basis of' a perceived impairment.

      Despite expanding the class of individuals who may bring "regarded as" claims, the ADA Amendments make two tweaks to this category of claims that favor employers. First, employees who have "transitory" impairments, i.e. those with an actual or expected duration of six months or less, may not bring "regarded as" claims against their employers. (25) However, in section 1630.2(j)(l)(ix) of the proposed regulations, the EEOC clarifies that "impairments that last for fewer than six months may still be substantially limiting." (26) Second, the amendments clarify that employers will not be liable for failing to provide a reasonable accommodation to an...