Deciphering the parameters of the Americans with Disabilities Act (“ADA”) has been a constant struggle for employers, property owners, and attorneys alike since its inception in the early 1990’s. Rather than clarify and add some form of consistency to the ADA, on September 25, 2008, President Bush signed into law the Americans with Disabilities Amendment Act of 2008 (ADAAA). The law, which will take effect on January 1, 2009, is designed to expand the protections of the original ADA of 1990. Pursuant to the amendments to the Act, it is substantially certain that more individuals will be considered ‘disabled’ under the new law. Undoubtedly, an increase in EEOC and similar civil rights commission complaints, as well as possibly employment litigation, is sure to follow.
Congress drafted the bill after an apparent determination that the United States Supreme Court had wrongfully narrowed the broad scope of protection originally intended under the ADA. Congress left little doubt that the new law was designed to expand the ADA’s protections. In rebuking the Court, Congress stated that “as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” (H.R. 3195 at § 2).
The first notable facet of the Act was a broadened definition of ‘disability’. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court had determined that the definition of disability should “be interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 197. The new amendments explicitly state that the definition of disability “shall be construed broadly.” (ADAAA at Sec. 3). Under this new standard for defining ‘disability’, and the Supreme Court’s mandate to construe the term broadly, it is highly likely that lower federal District Courts will be more hesitant to grant summary judgment to employers and other defendants. As a result, Plaintiffs will face less difficulty getting disability claims before the jury, which has been known to disregard legal maxims and base results, particularly in employment cases, on its conception of what was fair.
Another notable change under the amendments is that they overturn the mitigation rule announced in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). In Sutton, the Court ruled that if an individual’s disability could be overcome by mitigating factors, that person would not be considered ‘disabled’ as defined by the ADA. Id. at 488-489. In other words, under Sutton, if an employee utilized hearing aids, medications, prosthetic devices, mobility devices or other mitigating tools, the employer could often successfully argue that the employee was not ‘disabled’, even if the employee clearly would have been disabled without the aid of such devices. Under the ADAAA, mitigating factors will no longer be considered in determining whether an employee is ‘disabled’. Consequently, a broad range of individuals will suddenly be considered ‘disabled’ when they previously would not have qualified under the prior definition.
The ADAAA additionally provides the courts with more guidance in determining whether an employee is disabled. Under the current law, a person is considered disabled if they have “[a] physical or mental impairment that substantially limits one or more major life activities...” This definition is carried over into the new law. However, the old law left it to the courts to determine what constituted a ‘major life activity’. Under the amendments, the following non-exhaustive list is provided as guidance for what constitutes a major life activity: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working,” along with new operations of major bodily functions such as “the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.” Many of these categories, such as the operations of major bodily functions, the courts previously did not consider major life activities qualifying under the ADA. The amendments have broadened what is considered a ‘major life activity’.
In addition, the ADA’s “regarded as” disabled provision will be revised under the new law. A “regarded as” disabled claim is one where the employee is not actually disabled, but the employer is subject to liability for having “regarded” the employee as disabled. Formerly in a “regarded as” claim, the employee was required to prove that the employer regarded the employee as having a disability that affected a major life activity. Under the ADAAA, employees will no longer have to prove that the perceived disability affects a major life activity or was perceived to affect a major life activity. Nevertheless, the amendments also place a few restrictions on the “regarded as” prong. For example, the “regarded as” prong no longer applies if the perceived disability has an actual or expected duration of six months or less. Additionally, employers are no longer required to provide reasonable accommodations to those individuals they regard as being disabled. The practical import of the broadened scope of coverage on the one hand, and parallel limitation of claims on the other, is yet to be seen in the employment law arena.
The amendments to the ADA will require employers to re-think their human resources practices. Reasonable accommodations will need to be made to a much broader range of employees. Moreover, with the broadened definition of “disability”, employers should be hesitant to make any employment decisions based on physical impairments or attributes which could be perceived as an impairment. The ADAAA will also have an impact outside the employment arena. Insurers who provide Employment Practices Liability (EPL) policies will need to be fluent in the intricacies of the amendments to the ACT to determine what impact the amendments will have on the current coverage offered, claims handling, and the resolution of post-ADAAA claims. One proposition is certain, employers and insurers can expect an increase in employment litigation and the expenses associated with claims and suits. Particularly while the courts are attempting to wade through the waters of Congress’ new directives.
For any further questions as to how the amendments to the ADA may impact your employment practices, employees, clients, or insureds, please contact one of the members of our Employment Practices Liability Group listed below. Our Employment Practices Liability Group is also available for consultation regarding revisions and amendments to employee handbooks and employment policies potentially impacted by the ADAAA.
