On September 25, 2008, President George W. Bush signed into law the ADA
Amendments Act of 2008 (“ADAAA”), which amends the Americans with Disabilities
Act of 1990 (“ADA”). The ADAAA, which passed the House and Senate with
overwhelming support, significantly broadens the scope of the ADA, particularly
with respect to the definition of a “disability.”
Over the last decade, various court decisions have limited the reach of the
ADA. For example, in Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999), the Supreme Court held that only a person who remained substantially
limited in a major life activity after accounting for mitigating measures
could be considered disabled under the ADA. In Toyota Motor Mfg., Ky, Inc. v.
Williams, 534 U.S. 184 (2002), the Supreme Court held that only impairments
that substantially limit activities of major importance to most people
constitute a disability.
The ADAAA reverses both of these decisions, changing the definition of
disability and making more employees subject to the protections of the ADA.
Broad Construction of “Disability”
Congress, through the ADAAA, first rejected the Toyota Motor Mfg.
restrictive rule of construction. In Toyota Motor Mfg., the Supreme Court
held that the terms “substantial” and “major” in the text of the ADA “need to be
interpreted strictly to create a demanding standard for qualifying as disabled,”
thus limiting the group of individuals covered by the ADA. See Id. at
197. In direct response, Congress stated in the ADAAA that “[t]he definition of
disability shall be construed in favor of broad coverage of individuals under
this Act, to the maximum extent permitted by the terms of this Act.” See
ADAAA §§ 4(a), 3(a)(4)(A). This new rule of construction will undoubtedly
increase the number of individuals deemed disabled.
Expanded Definition of “Substantially Limits”
Toyota Motor Mfg. also held that a “substantially limiting” impairment
is one that “prevents or severely restricts an individual from performing major
life activities.” See Id. at 198. The ADAAA rejects this narrow reading.
However, rather than specifically defining what sort of impairment would in fact
substantially limit a major life activity, Congress tasked the Equal Employment
Opportunity Commission (“EEOC”) with revising the definition of “substantially
limits” to conform to the broadened Findings and Purposes section of the ADAAA.
See ADAAA § 6(1).
Mitigating Measures Not Applicable
Under the ADAAA, the disability status of an individual is to be ascertained
before accounting for mitigating measures, specifically rejecting Sutton.
The ADAAA requires courts to evaluate disability “without regard to the
ameliorative effects of mitigating measures.” See ADAAA § 3(a)(4)(E). Mitigating
measures include both artificial measures and adaptive behavior. See
ADAAA § 3(a)(4)(E). Thus, under the ADAAA, any individual that is substantially
impaired in a major life activity before accounting for medications,
physical supports or other mitigating measures will be considered disabled, even
if the mitigating measures remove the substantial limitation.
Expanded Definition of Major Life Activity
The ADAAA also enlarges the definition of major life activity under the ADA,
rejecting the prior narrow interpretation by the Supreme Court in Toyota
Motor Mfg. that major life activities should be limited to “those activities
that are of central importance to daily life” for most people. See Id. at
201. Although the ADAAA does not provide a specific definition of a major life
activity, it does state that the term “major” need not be interpreted strictly.
See § 2(b)(4). Episodic impairments or impairments in remission must also
be treated as disabilities if those impairments would substantially limit a
major life activity when active. See ADAAA § 3(a)(4)(D).
Individuals Regarded As Impaired Broadened
Finally, the ADAAA incorporates the School Board of Nassau County v.
Arline, 480 U.S. 273 (1987), definition of “regarded as having” an
impairment. Thus, the ADAAA states that an individual has been discriminated
against unlawfully on the basis of a disability if the individual is “regarded
as having such an impairment,” regardless of whether “the impairment limits or
is perceived to limit a major life activity.” See ADAAA § 2(b)(3). Thus,
under the ADAAA, an individual does not have to prove an employer’s mistaken
belief that the individual suffered from an impairment severe enough to
substantially limit a major life activity. An employer that merely believed an
employee to be impaired (regardless of whether the impairment itself was truly
substantial or the employer believed the employee was substantially impaired)
regards that employee as “disabled” for the purposes of the ADAAA.
The ADAAA becomes effective January 1, 2009, with regulations from the EEOC
expected later in the year. Given the significant broadening of the definition
of disability under the ADAAA, employers are advised to re-examine and review
their disability discrimination and reasonable accommodation policies and
practices, and make certain that they are in compliance with the newly expanded
scope of the ADA.
For assistance in reviewing your current ADA practices or training Human
Resources and other managers on the new requirements created by the ADAAA,
please contact any member of the McGuireWoods
Labor & Employment or