The ADA Amendments Act of 2008: the pendulum swings back.

• Author: Klein, Paul R.

INTRODUCTION

In September 1987, Francis J. Kelly, the senior buyer in Drexel University's purchasing department, fractured his hip, leaving him with a noticeable limp. (1) Kelly's physician diagnosed him with severe post-traumatic degenerative joint disease (2) and protrusio acetabulum, (3) both of which caused Kelly "great difficulty in walking around." (4) Drexel later eliminated Kelly's position at the university. (5) Kelly, sixty-eight years old at the time, filed charges of discrimination against Drexel under the Americans with Disabilities Act ("ADA"). (6) The United States Court of Appeals for the Third Circuit affirmed summary judgment in favor of Drexel, finding that Kelly did not qualify as disabled under the protections enumerated by the ADA. (7) Although the Third Circuit found that Kelly's condition forced him to move slowly and take great care when maneuvering up and down stairs, it nonetheless held that Kelly's impairment did not "substantially limit" his ability to walk because he did not require a cane or other assistance in order to move around. (8) Kelly's physical impairment, though limiting, apparently did not reach the threshold required for ADA protection. (9)

In 1986, Abigail Guzman-Rosario began part-time work for United Parcel Service, scanning and repositioning packages as they moved along a conveyor belt. (10) In November 1997, Guzman-Rosario noticed severe pain in her side and spent a few days in the hospital undergoing tests. (11) Ultimately, Guzman-Rosario was diagnosed with ovarian cysts, which had to be surgically removed. (12) Despite successful removal, Guzman-Rosario continued to suffer from intermittent nausea and pain. (13) At times, her symptoms were so severe that she had to miss work and spend the day at home lying down. (14) Despite medical documentation of her condition, UPS grew impatient with Guzman-Rosado's absences, (15) and the company terminated her employment. (16) In rejecting Guzman-Rosario's claims, the First Circuit found that the ADA did not reach those with temporary afflictions and thus could not protect Guzman-Rosario. (17)

These cases illustrate the courts' general reluctance to find plaintiffs disabled within the meaning of the ADA. The stated purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (18) Unfortunately, the statute's definition of disability, (19) in its original manifestation, provided little guidance to courts, and its application has failed to achieve the Act's stated goal. The ADA defines a disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." (20) As interpreted, however, "a surprising number of people who one might assume would benefit from the ADA are left outside its protections," (21) typically because of the courts' strict construction of the statute's vague definitional boundaries. (22) Frequently, disabled individuals like Kelly or Guzman-Rosario find their lawsuits dismissed "because their impairments are not considered limiting enough to qualify as disabilities" under the ADA. (23)

In several respects, courts' interpretational difficulties stem from the original ADA's ambiguous language. (24) The judiciary has had trouble deciphering how broadly or narrowly to construe "major life activity," despite administrative guidance from the Equal Employment Opportunity Commission ("EEOC"). (25) Further, the courts have created a paradox in interpreting the substantially limits prong of the ADA, often finding plaintiffs at once too disabled and not disabled enough. (26) As a result, the courts' strict approach to the ADA's definitional boundaries has created serious impediments to meritorious disability cases. (27)

Although the ADA was originally passed in 1990, by 1996 the judicial climate had already chilled to ADA claims. Courts had "summarily dismissed numerous cases of alleged disability discrimination on the ground that the plaintiffs were not disabled, even though the plaintiffs bringing these cases suffered from disorders as severe as cancer and hemophilia." (28) The trend continued into the second decade of ADA interpretation. A recent survey found that of 272 ADA claims in 2006, employers won in 97.2% of the cases, while employees won only 2.8%. (29)

Recognizing that the ADA inadequately protected the disabled, Congress passed the ADA Amendments Act of 2008 ("ADAAA"), (30) which President George W. Bush signed into law on Thursday, September 25, 2008. (31) The ADAAA took effect on January 1, 2009, and creates several expanded protections that likely would have provided relief to both Francis Kelly and Abigail Guzman-Rosario. (32) While disability advocates may initially embrace these changes, some concern exists that the amendments sweep too broadly. (33) Three amended sections pose the most significant threat to protection consistent with the legislative intent of the ADA. First, the ADAAA's definition of major life activities incorporates activities that are difficult to observe, such as concentrating, thinking, and communicating. (34) Including activities like "communicating" can generate more questions than answers regarding how broadly the ADA should reach, as communication is immensely difficult to understand, and occurs across a variety of cognitive, affective and reflexive responses. (35)

The second indication that the ADAAA sweeps too broadly stems from its inclusion of "the operation of a major bodily function" as a major life activity. (36) Such broad inclusion extends ADA protection to many employees whose impairments fall outside the spirit of the statute. (37) Under the 1990 ADA, an employee often could not establish a claim based on something as serious as cancer, (38) yet under the ADAAA, the definition of a major life activity seems relatively limitless. The third concern with the ADAAA stems from its suggested construction of the substantially limits prong, (39) which attempts to dilute the language in favor of offering "broad coverage of individuals under [the Act]." (40) Expansion of the substantially limits prong of the ADA was, presumably, one of the principal reasons behind the push for amending the ADA. The drafters, however, failed to alter the statutory language, placing the courts in the awkward position of interpreting the same language differently.

While many areas of the ADAAA will generate fascinating debate over the breadth of protection for the disabled, the purpose of this Note is to explore the three changes highlighted above, and to examine their anticipated effects on both employers and employees. Part I briefly discusses the history of the ADA and the ADAAA, and further elaborates on the evolution of the legislative purpose behind the law. Part II explores three serious concerns with the ADAAA and illustrates the likely outcomes for ADA plaintiffs and defendants under the ADAAA. Finally, Part m proposes a moderate position that seems to have been missed by the ADAAA--a position that would better maintain the balance of protecting both disabled American workers and the businesses that employ them.

1. HISTORICAL PERSPECTIVE--THE EVOLUTION OF PROTECTION FOR DISABLED WORKERS

   In October 1987, Professor Robert L. Burgdorf, Jr. drafted the first version of the Americans with Disabilities Act while working as a staff member at the National Council of the Handicapped. (41) After extensive research on the pervasiveness of discrimination against the disabled, the Council worked with a small committee to create a model ADA bill, (42) based in large measure on section 504 of the Rehabilitation Act of 1973. (43) Congress adopted the Rehabilitation Act "to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society." (44) However, the Rehabilitation Act applies only to entities receiving federal funds; (45) thus, a large number of disabled Americans are left outside its protections.

   Driven in part by the disability rights activist movement, (46) a number of congressional members, including House Representative Tony Coelho and Senator Tom Harkin, expressed interest in the model ADA bill. (47) Members of Congress studied the model bill and, over the course of about six months from October 1987 to April 1988, drafted the first ADA. (48) Unfortunately, the 100th Congress ended and the ADA died on the floor. (49) During the first year of the next session, Senators Harkin and the late Edward Kennedy devoted themselves to writing a new version of the ADA and generating support for its passage. (50) After undergoing another period of refinement at the request of the business community, a final version appeared in early 1990. (51)

   Interestingly, support for the ADA was not primarily driven by equitable social considerations. (52) Although congressional leaders recognized that disability discrimination created an unnecessary bar to the disabled from fully participating in society, (53) they also realized that the country was spending billions of dollars a year on disabled individuals' added dependency on the welfare rolls. (54) As Representative Coehlo noted, society as a whole "bears the economic burdens of this prejudice: dependency is expensive. It increases benefit entitlements and decreases productive capacity sorely needed by the American economy." (55) As a result of congressional "belief that the [ADA] would substantially relieve [economic] dependency on the government," the ADA passed with little opposition. (56) The final bill passed the House by a vote of 377-28, and the Senate by a vote of 91-6. (57)

   The ADA as passed in 1990 purported to significantly extend the provisions of the Rehabilitation Act. (58) At the time of its...