SC Lawyer, July 2009, #1. Redefining "Disabled": The ADA Amendments Act of 2008.

AuthorBy Philip A. Kilgore

South Carolina Lawyer


SC Lawyer, July 2009, #1.

Redefining "Disabled": The ADA Amendments Act of 2008

South Carolina Lawyer July 2009 Redefining "Disabled": The ADA Amendments Act of 2008 By Philip A. Kilgore Introduction

The ADA Amendments Act of 2008 (ADA Amendments) was signed into law by President George W. Bush on September 25, 2008, and became effective January 1, 2009. The ADA Amendments amend the Americans with Disabilities Act of 1990 (ADA), which is the comprehensive set of federal laws governing discrimination against individuals with disabilities or those who are "regarded as" disabled.

The ADA Amendments reverse several Supreme Court cases and implement sweeping changes to the rules for determining whether an employee has a "disability" as defined under the ADA and is thus entitled to protection under the ADA.

This article will discuss the key changes to the disability discrimination laws, and comment on the likely impact of these changes on lawyers, employees and employers.

Overview of the ADA

The ADA prohibits employers from discriminating against "qualified individuals" with a "disability." 42 U.S.C. § 12112(a). The ADA establishes three prongs of protection, defining "disability" as: "(1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment." 42 U.S.C. § 12102(2).

Thus, the "disabled persons" the ADA protects are persons who fall into one of three categories: those who actually have a disability; those who may have been disabled in the past; and those who others consider to be disabled.

The ADA also generally imposes an affirmative duty on an employer to offer a reasonable accommodation to an individual with an actual impairment (category one above) who, with the accommodation, is able to perform the essential functions of his or her job. 42 U.S.C. § 12112(b)(5)(A). Such accommodations might include modifications or adjustments to the work environment, or to the position itself, that enable the disabled employee to perform the essential functions of that position. 29 C.F.R. § 1630.2(o)(1)(ii) (1997).

Thus, the discrimination prohibited by the ADA can take the form of disfavoring a disabled individual in an employment decision or refusing to provide a disabled individual with a reasonable accommodation.

A desire to redefine "disability"

While the ADA was clearly intended to protect individuals with impairments or who were regarded as having impairments, critics complained that recent U.S. Supreme Court decisions had effectively gutted the ADA. They argued that these cases narrowed the definition of "disability" to the point where few employees were deemed covered under the ADA.

The critics cited statistics to support their arguments. For example, a frequently cited study found that in every year from 1998 through 2007, employers prevailed in at least 93 percent of disability discrimination cases. Amy L. Allbright, 2007 Employment Decisions Under the ADA Title I - Survey Update, 32 Mental & Physical Disability L. Rep. 335 (2008). The same study estimated that employers prevailed in 98 percent of all ADA employment discrimination cases during the year 2003. Id. Many cases were won by employers on the grounds that the plaintiff did not establish a "disability" under the ADA.

With that in mind, proponents of the ADA Amendments sought to broaden the definition of "disability." There is little doubt they succeeded.

Purposes of the ADA Amendments Act

The best summary of the changes brought about by the ADA Amendments is the "Purposes" section of the bill itself. Among the purposes are:

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc. . . . that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures; (3) to reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc. with regard to coverage under the third prong of the definition of disability [i.e., "regarded as disabled"] and to reinstate a broad view of the third prong ; (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Mfg., Inc. v. Williams that the terms "substantially" and "major" in the definition of disability under the ADA "need to be...

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