EEOC reinforces broad interpretation of ADAAA disability qualification: but what does "substantially limits" mean?

AuthorMiller, Carol J.
PositionAmericans with Disabilities Act Amendments Act of 2008

TABLE OF CONTENTS I. INTRODUCTION II. THE U.S. SUPREME COURT'S NARROWING INTERPRETATION OF ADA DISABILITIES AND WHAT "SUBSTANTIALLY LIMITS" MAJOR LIFE ACTIVITIES A. Sutton v. United Air Lines, Inc. B. Murphy v. United Parcel Service, Inc. and Albertson's, Inc. v. Kirkingburg. C. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams III. THE ADAAA AND EEOC'S BROAD CONSTRUCTION OF A QUALIFYING DISABILITY AND WHAT "SUBSTANTIALLY LIMITS" MAJOR LIFE ACTIVITIES. A. Broad Scope of "Disability" Protection B. Expansion of Qualifying "Major Life Activities" C. Broad Construction of "Substantially Limits" D. Role of Mitigating Measures IV. LIMITATIONS AND AMBIGUITIES IN THE ADAAA A. Criteria for "Being Regarded as Having Such an Impairment". B. Additional Limitations and Ambiguities C. No Retroactive Application of Broad Construction D. Challenge of Accommodating Disabilities V. CONCLUDING RECOMMENDATIONS I. INTRODUCTION

What does it mean for an impairment to "substantially limit" a major life activity under the 2008 Americans with Disabilities Act Amendments Act (ADAAA)? (1) suppose you are an employee who struggles with a learning

  1. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). disability, but, through persistence, completed a college degree. imagine you are able to perform daily functions at home but have difficulty performing repetitive motions at work. What if you are an insulin-dependent diabetic or have epilepsy, which, through medication, seems to be currently under control. Under court decisions interpreting the Americans with Disabilities Act (ADA) during the decade prior to the passage of the ADAAA, it became increasingly unlikely that these conditions would qualify for disability protection. (2) In the ADAAA, Congress emphasized that the legislative purpose was to assure broad construction of what constitutes a qualified disability. (3) Under the broad coverage mandated by the ADAAA and the Equal Employment Opportunity Commission's (EEOC) proposed regulations and implementing guidelines, these conditions would qualify as impairments that substantially limit a major life activity. (4)

Part I of this Article recognizes the difficulty in calculating how many workers are disabled. such difficulties have been used by the courts to justify differing interpretations of what constitutes a disability. This Part also discusses the origin of the ADA and provides a brief overview of the 2008 ADAAA. Part II of the Article examines the United States Supreme Court's interpretations that narrowed the construction of what is a "substantial limitation" and what is an ADA disability. This Part highlights the lack of consensus between the courts, Congress, and the EEOC, as well as the courts' apparent disregard of the congressional intent that the ADA serve as a vehicle for meaningful protection of disabled workers. Part iii discusses the 2008 amendments and the 2009 proposed EEOC regulations with particular focus on (a) the broad scope of disability protection; (b) the expansion of what qualifies as major life activities; (c) the broad construction of "substantially limits"; and (d) the role of mitigating measures. Part IV examines limitations and ambiguities in the ADAAA, including the criteria for being "regarded as having such an impairment," and identifies future disability-related challenges. The conclusion supports congressional intent to provide broader protection for disabled employees and addresses the inherent contradictions posed by the new EEOC definition of "substantially limits." It also recognizes the difficulty in applying a definition that explains what the phrase does not mean rather than defining what it does mean. Finally, the conclusion recommends an alternate definition of a "substantial limitation" of a major life activity.

The number of people with a work-related disability is difficult to estimate, as definitions of disabilities vary among congressional findings, disability studies, and court interpretations. In surveys about work-related disabilities, results and conclusions vary due to the number and nature of questions used, sample size, and response rate, all of which skew results. In 1990, the ADA congressional findings estimated that 43 million individuals were physically disabled, which is about 17% of the population. (5) The 1997 Survey of Income and Program Participation (SIPP) data estimated that 19.7% of the total noninstitutionalized u.s. population (or 52.6 million) were disabled Americans, of which 12.3% (or 33 million) had severe disabilities. (6) The 2007 American Community Survey (ACS) estimated that 12.4% of the adult population ages 18-64 had an employment-related disability, with a slight decline in the percentage in 2008. (7) U.S. Census personnel, however, cautioned against use of generalizations regarding the differences in census disability estimates for 2007 and 2008:

Because of the conceptual differences between the 2007 and 2008 ACS disability questions, the Census Bureau does not encourage data users to make comparisons between the 2008 disability estimates and prior ACS disability estimates. Differences between the estimates from 2007 and 2008 are reflective of both the real change in disability status and the difference in measurement. The combination of these two factors can be cumulative .... (8) More recently, in September 2009, the Current Population Survey of the United States Bureau of Labor Statistics estimated that 18.4% of the U.S. workforce had a disability and 16.2% of disabled Americans were unemployed, compared to 9.2% of nondisabled Americans who were unemployed. (9)

Recognizing the rights of disabled individuals to seek employment and the need to better facilitate their ability to work, Congress passed the Rehabilitation Act in 1973 (covering federal employees and federally funded programs) (10) and the ADA (applying to the private sector) in 1990.11 Title I of the ADA provides protections for disabled workers, and Titles II and III relate to public services and public accommodations, allowing disabled individuals to access public facilities. (12) Despite specific congressional language directing that states shall not be immune from actions for violations of the ADA, (13) the U.S. Supreme Court has significantly limited the ADA's application by providing state government employers sovereign immunity under the Tenth and Eleventh Amendments of the United States Constitution, as applied to the states through the Fourteenth Amendment. (14) Congress enacted the Rehabilitation Act to protect individuals with disabilities and fulfill its goal of "providing individuals with disabilities with the tools necessary to ... achieve equality of opportunity, full inclusion and integration in society, employment, independent living, and economic and social self-sufficiency, for such individuals." (15) Despite Congress' express instruction in the original ADA that the courts should not "apply a lesser standard than the standards applied under title V of the Rehabilitation Act" (16) in determining what constitutes a disability, courts indeed have more narrowly interpreted the ADA. (17) The U.S. Supreme Court also significantly narrowed the interpretation of what constitutes a "substantial limitation" of a major life activity for the private sector employer. (18) In congressional hearings before the Committee on Education and Labor, Representative Andrews (presiding) expressed the belief that these "tortured judicial interpretations of the definition of 'disability' ... severely undercut the effectiveness of this act [ADA] and severely excluded a lot of worthy Americans from the act's protection." (19) The House Committee on the Judiciary reinforced that sentiment, stating that "Congress did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage," a sentiment echoed by House Majority Leader Hoyer. (20) The ADAAA responds to such constricted coverage by emphasizing congressional intent to interpret more broadly workplace-related disabilities "to the maximum extent permitted by the terms of this Act." (21)

Both physical and mental disabilities constitute "impairments" under the ADA. From bad backs (22) and knee strains (23) to migraine headaches (24) and erectile dysfunction, (25) courts have recognized a wide range of physical ailments as impairments. Additionally, courts have also recognized mental disorders ranging from bi-polar disorder (26) to somatoform disorder (27) as impairments or disabilities. (28) The fact that an impairment exists, however, does not assure the individual that he or she will be protected under the ADA. The impairment also must substantially limit a major life activity. (29)

The legislative purpose of the 2008 ADAAA emphasizes congressional intent for a "broad" interpretation of what constitutes a substantial limitation for a qualified disability. (30) Under the ADAAA rules of construction, a disability needs to substantially limit only one major life activity, and that activity can be work. (31) Broad construction should be afforded to what constitutes such an impairment, and an impairment generally shall be assessed in its pre-corrected state. (32) As then House Majority Leader Steny Hoyer emphasized, the issue should be whether the discrimination was based on a disability, not on whether there were measures that could mitigate the disability. (33) The ADAAA clarifying amendments reject the more restrictive interpretations by the U.S. Supreme Court during the previous decade. (34)

The ADAAA provides that employers shall not "discriminate against a qualified individual on the basis of disability." (35) An individual (36) has a qualified disability under the Americans with Disabilities Act (ADA) if he or she:

(1) has "a physical or mental impairment that substantially limits one or more major life activities"; or

(2) has "a record of such an...

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