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

• Author: By Philip A. Kilgore

South Carolina Lawyer

2009.

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 interpreted strictly to create a demanding standard for qualifying as disabled" and that to be substantially limited in performing a major life activity under the ADA, "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives"; (5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Mfg., Inc. v. Williams for "substantially limits" has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis; and (6) to express Congress' expectation that the Equal Employment Opportunity Commission [EEOC] will revise that portion of its current regulations that defines the term "substantially limits" as "significantly restricted" to be consistent with this Act, including the amendments made by this Act. ADA Amendments Act of 2008, Pub. L. No. 110-325 § 2(b), 122 Stat. 3553, 3554 (2008) (emphasis added) (citations omitted).

Definition of "disability" and "substantially limits"

The ADA provides that an individual with an impairment is "disabled" if the impairment "substantially limits" him or her in a major life activity. 42 U.S.C. § 12102(2)(a). In Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 197 (2002), the Supreme Court held that an individual must meet a "demanding standard" for showing that he or she is "substantially limited" in a major life activity.

The Toyota Court also held that to establish that they are "substantially limited," individuals must show that their impairments "prevent or severely restrict" their ability to perform activities of central importance to most people's lives. Id. at 198. Under this rule, courts across the country dismissed numerous claims on the grounds that the plaintiffs' impairments were not severe enough to be protected by the ADA.

The ADA Amendments expressly overrule the Toyota case, stating that the case had "narrowed the broad scope of protection intended to be afforded by the ADA." Pub. L. No. 110-325 § 2(a)(5), 122 Stat. at 3553. The ADA Amendments assure a broad definition of disability in at least seven ways.

Rules of construction

First, the ADA Amendments codified a rule of interpretation requiring that the "disability" definition "be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA]." Pub. L. No. 110-325 § 4(a), 122 Stat. 3555 (to be codified at 42 U.S.C. § 12102(4)(A)).

Second, the ADA Amendments dictate that "[T]he question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." Pub. L. No. 110-325 § 2(b)(5), 122 Stat. at 3554.

Third, the ADA Amendments broadened the definition of "disability" by stating that "[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be construed as a disability." Pub. L. No. 110-325 § 4(a), 122 Stat. at 3556 (to be codified at 42 U.S.C. §12102(4)(C)).

Fourth, the ADA Amendments state that an impairment that is episodic or in remission qualifies as a disability if it would substantially limit a major life activity in active state Pub. L. No. 110-325 § 4(a), 122 Stat. at 3556 (to be codified at 42 U.S.C. §12102(4)(D)). In other words, if an employee has a condition in remission, courts must consider whether the disease would substantially limit a major life activity in its active phase, regardless of whether the disease has significant effect on the employee while in remission.

Rulemaking

Fifth, the ADA Amendments direct the EEOC to redefine the term "substantially limits" as used in the ADA. Pub. L. No. 110-325 § 2(b)(6), 122 Stat. at 3554. As of the date of this article, the EEOC had not yet promulgated any such regulation. Nevertheless, courts undoubtedly will take note of admonition that "Congress finds that the current [definition of] the term 'substantially limits' as 'significantly restricted' [is] "inconsistent with congressional intent, by expressing too high a standard." Pub. L. No. 110-325 § 2(a)(8), 122 Stat. at 3554.

Expanding the definition of "major life activity"

The sixth way the ADA Amendments broaden the definition of "disability" is by codification and expansion of the EEOC definitions of "major life activity" in the ADA.

Under the first prong of the ADA's definition of "disability," an individual is disabled if he or she is substantially limited in one or more "major life activities." While the original ADA did not define "major life activities," regulations promulgated by EEOC contained a brief, nonexclusive list of examples of major life activities, including "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (2008). Many a disability discrimination claim was dismissed on the grounds that the plaintiff could not show that he or she was substantially limited in a major life activity.

The ADA Amendments adopt the EEOC's list of major life activities and add several more. The nonexclusive list of "major life activities" now includes all the activities identified in the EEOC regulations, as well as "eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating." Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. § 12102(2)(A)).

Under this language, many more conditions will likely be covered by the ADA. For example, adding the activities of reading, concentrating and thinking to the ADA's definition of "major life activities" should allow more litigants to be deemed disabled with conditions such as dyslexia and attention deficit disorder.

Congress also addressed a concern that courts had failed to take into account less obvious disabilities. A number of plaintiffs had been denied disability status despite conditions that affected certain internal body functions such as cancers, HIV/AIDS and multiple sclerosis. Congress addressed these cases by expanding the definition of "major life activities" to include the operation of "major bodily functions." The nonexclusive list of these "life activities" would include "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. § 12102(2)(B)).

Mitigating measures cannot be considered

The seventh way the ADA Amendments broaden the definition of disability is by making clear that the courts should not take into consideration mitigating measures in determining whether an individual is impaired.

In Sutton v. United Air Lines Inc., 527 U.S. 471, 482 (1999), the Supreme Court held that corrective devices, such as eyeglasses, that allow individuals to function despite their impairments can be considered by courts in determining whether an individual is "disabled" under the ADA. See alsoAlbertsons Inc. v. Kirkingburg, 527 U.S. 555 (1999) (correctable poor vision), and Murphy v. United Parcel Serv., 527 U.S. 516 (1999) (high blood pressure treatable with medication).

One of the stated purposes of the ADA Amendments was "to reject the requirement that [disability] be determined with reference to the ameliorative effects of mitigating measures." Pub. L. No. 110-325 § 2(b)(2), 122 Stat. at 3554. To that end, the ADA Amendments provide that mitigating measures may not be considered in determining whether an individual is disabled, with the exception of "ordinary eyeglasses and contact lenses." The ADA Amendments give several examples of mitigating measures:

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. Pub. L. No. 110-325 § 4(a), 122 Stat. at 3556 (to be codified at 42 U.S.C. § 12102(4)(E)(i)(I)-(IV)).

By this provision, Congress significantly expanded the class of individuals deemed "disabled" under the ADA to include individuals who, although impaired, are able to function and perform their jobs with the assistance of medication or other aids.

Changes to the "regarded as" prong

The ADA Amendments also redefine the "regarded as" prong included in the ADA's definition of "disability."

As stated above, individuals who are "regarded as" disabled by an employer are subject to the ADA's protection. Before the ADA Amendments, a litigant would have to show that the employer perceived him or her as being substantially limited in one or more major life activities to establish that he or she was "regarded as disabled" by the employer. SeeSutton at 489. This was considered a fairly high hurdle for plaintiffs.

Under the ADA Amendments, an employee now need only show that the employer views the employee as having an "impairment"-without regard for the impact of the perceived impairment on major life functions. Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. § 12102(3)(A)). This seemingly technical change relieves the litigant of the burden of proving that the employer believed he or she was limited in a major life activity. All an employee has to prove is that the employer believed the employee was impaired and took some action adverse to the employee.

Despite the general pro-employee effect of the ADA Amendments, several provisions tweak the "regarded as" prong of the ADA's definition of "disability" in an "employer-friendly" way. First, the ADA Amendments clarify that individuals who are disabled under the "regarded as" prong are not entitled to any "reasonable accommodation" of their perceived disability. Pub. L. No. 110-325 § 6, 122 Stat. at 3558 (to be codified at 42 U.S.C. §12201(h)). Further, employees with "transitory" impairments, defined as those with an actual or expected duration of six months or less, may not bring claims under the "regarded as" prong. Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. §12102(3)(B)).

Retroactivity of the ADA Amendments

The ADA Amendments became effective on January 1, 2009, but do not state whether they will apply retroactively. As of the date of this article, at least one U.S. Court of Appeals has held that the ADA Amendments do not apply retroactively. E.E.O.C. v. Agro Distribution,LLC, 555 F.3d 462, n.8 (5th Cir. 2009). See alsoVaughn v. Rent-A-Center, Inc., 2009 WL 723166 at n.1 (S.D. Ohio Mar. 16, 2009) and Kingston v. Ford Meter Box Co., Inc., 2009 WL 981333 at n.4 (N.D. Ind. Apr. 10, 2009). Assuming other courts follow this lead, the ADA Amendments should apply only in cases where the actions giving rise to the plaintiffs' claims occurred on or after January 1, 2009.

Implications of the ADA Amendments

The practical effect, indeed the intent, of the ADA Amendments will be for many more ADA plaintiffs to be considered by courts to be "disabled." Employees no longer have to show that they had an impairment that "prevented or severely restricted" them in one or more major life activities. The ADA Amendments direct the EEOC to come up with another definition of "substantially limits" to create a lower threshold for ADA protection.

This development, along with new rules of construction, the broadening of the definition of "major life activity," the elimination of the consideration of mitigating measures, and the changes to the "regarded as" prong of the ADA's definition of "disability," means that employers and their attorneys are less likely to prevail in disability discrimination cases by arguing that the plaintiff is not "disabled."

The focus in ADA cases will change significantly. And this is as Congress intended. In wrongful discharge/discipline claims, attention will now shift to whether the employer has a legitimate non-discriminatory reason for its decision. In this respect, these types of ADA cases can be expected to become more like typical Title VII cases.

As indicated above, one purpose of the Amendments Act was "to convey the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations." Pub. L. No. 110-325 § 2(b)(5), 122 Stat. at 3554. This is a veiled declaration that Congress expects most ADA cases to focus on whether the employer met its obligations to accommodate the disabled.

Thus, more cases in the future will address employers' alleged "failure to accommodate," including whether the employers engaged in the "interactive process" required under the ADA. Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number 915.002, http://www.eeoc.gov/policy/docs/accommodation.html, Question 1. With that in mind, employers will find it advisable to expend more effort in engaging in the interactive process prescribed by the ADA with respect to almost any individual with a colorable impairment.

Predictions

Congress has directed the EEOC to implement many of the changes through new regulations. Employers and employees can expect EEOC to: * Redefine "substantially limits" to mean something substantially less than "significantly restricted." * Add new categories of "major life functions." * Define the major life function of "working" to include inability to perform a single job. * Require deference to medical diagnoses and discourage individualized, nonmedical assessments. * Give weight to employers' own job requirements as evidence of substantial limitations to the major life function of working. * Make clear that being "regarded as disabled" relative to a single job will be sufficient for protection. * Identify vision requirements for jobs as possible bases for "regarded as" protection. * Establish a "bright-line" rule that impairments with an actual or expected duration of more than six months are not transitory or minor and therefore entitled to protection.

Conclusions

As a result of ADA Amendments, more employees will be deemed to be actually "disabled" and "regarded as disabled." Employers will now begin to focus on other issues, such as job qualification, ability to perform "essential job functions," "reasonable accommodation" and the need to engage in the "interactive process." Without a doubt, the ADA Amendments have changed the face of disability discrimination law. Employers and lawyers should expect the ADA Amendments to be the subject of litigation for years to come.

Philip A. Kilgore is a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, PC in Greenville.