Congress Expands Disability Definition Under the ADA

October 10, 2008

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.

Conclusion

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 Employee Benefits teams.

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