With praise from disability groups and business organizations alike, President George W. Bush has signed into law amendments to the Americans with Disabilities Act (“ADA”) that will significantly expand the protections afforded to disabled individuals. The new law, entitled the ADA Amendments Act of 2008 (“ADAAA”), expressly overturns several landmark Supreme Court decisions narrowly interpreting the definition of “disability” and will make disposing of ADA cases prior to trial more challenging for employers. The changes to the ADA take effect on January 1, 2009.
Background
The ADA was signed into law by President Bush’s father, President George H. W. Bush, on July 26, 1990. Title I of the ADA prohibits employers from discriminating against a qualified individual with a “disability.”
When the ADA was enacted, the definition of “disability” already had been interpreted broadly by the courts under the Rehabilitation Act, a law upon which the ADA was modeled. The ADA’s flexible definition of “disability” triggered claims by individuals with relatively minor or temporarily disabling conditions.
Beginning in the late 1990s, the U.S. Supreme Court decided a series of cases in which it confronted, for the first time, the ADA’s potential broad coverage. Fearing that the ADA’s coverage would be much more expansive than Congress intended, the Supreme Court narrowed the scope of the ADA’s “disability” definition by seizing on the ADA’s “findings” that “some 43,000,000 Americans have one or more physical or mental disabilities” and that individuals with disabilities are a “discrete and insular minority.” In the years that followed, studies revealed that employers prevailed in more than 90 percent of all ADA cases.
In the aftermath of these decisions and research, the National Council on Disability (“NCD”) issued a report in December 2004 stating that new legislation was needed to “restore” the ADA and proposed a draft bill entitled the ADA Restoration Act of 2004. Although it declined to pursue the broad proposal urged by the NCD, in 2007, Congress introduced its own ADA Restoration Act, which sought to eliminate the requirement that plaintiffs prove impairments “substantially limit” one or more “major life activities.”
Fearing the pendulum might shift too far in the other direction and, in some ways, lower the value of the ADA’s protections for people with more disabling conditions, members of Congress later pushed for a more limited bill with a better chance of enactment. Disability groups and business organizations, along with Democrats and Republicans in both the House of Representatives and the Senate, worked together to forge a compromise bill. Their efforts culminated in the ADA Amendments Act of 2008, which passed through Congress with overwhelming bipartisan support.
According to Jackson Lewis Partner and National Coordinator of the Firm’s Disability, Leave and Health Management Practice Group, Frank Alvarez, “Many of the ADAAA’s changes are good and the final bill is much better than the legislation that was initially introduced. It essentially puts the ADA back to where most thought it would be when it became effective in 1992.”
A Closer Look at the ADAAA’s Provisions
Congressional Findings and Purposes
The ADAAA propounds an extensive list of congressional findings and purposes that will shape how the Equal Employment Opportunity Commission (“EEOC”) and courts interpret and apply the ADA. Explicitly rejecting the Supreme Court’s decisions in Sutton v. United Airlines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the legislation provides: “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The legislation also directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment under the ADA.
The ADAAA removes the original findings in the ADA regarding the number of Americans with disabilities (43 million) and the finding that individuals with disabilities are “a discrete and insular minority.” By removing this language, Congress explicitly enlarged the class of individuals the ADA is intended to protect, thus eliminating the historical basis cited by the Supreme Court for narrowly construing the definition of “disability” under the ADA.
A Closer Look at the ADAAA’s Provisions
Congressional Findings and Purposes
The ADAAA propounds an extensive list of congressional findings and purposes that will shape how the Equal Employment Opportunity Commission (“EEOC”) and courts interpret and apply the ADA. Explicitly rejecting the Supreme Court’s decisions in Sutton v. United Airlines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the legislation provides: “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The legislation also directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment under the ADA.
The ADAAA removes the original findings in the ADA regarding the number of Americans with disabilities (43 million) and the finding that individuals with disabilities are “a discrete and insular minority.” By removing this language, Congress explicitly enlarged the class of individuals the ADA is intended to protect, thus eliminating the historical basis cited by the Supreme Court for narrowly construing the definition of “disability” under the ADA.
Definition of Disability
While the ADAAA retains the ADA’s definition of “disability,” it provides that term “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]” The ADAAA also clarifies that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The ADAAA’s congressional findings and purposes state the EEOC’s existing regulations interpreting the term “substantially limits” are “inconsistent with congressional intent, by expressing too high a standard” and express “Congress’ expectation that the [EEOC] will revise that portion of its current regulations that defines the term ‘substantially limits’ as ‘significantly restricted’ to be consistent with [the ADA].”
It is unclear precisely what the EEOC’s revised standard will be. However, given the ADAAA’s
congressional findings “that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis,” whether an individual’s impairment rises to the level of a “disability” under the ADA will certainly be an easier standard to meet and, as a corollary, likely will not be a determinative factor in resolving summary judgment motions in an employer’s favor.
No Consideration of Mitigating Measures
Overruling the Supreme Court’s Sutton v. United Air Lines decision, the ADAAA prevents courts and employers from considering mitigating measures an individual may be using when determining whether the individual is disabled. The only exceptions are ordinary eyeglasses and contact lenses.
“Regarded As” Having a Disability
The ADAAA lowers the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, individuals claiming they were “regarded as” having disabilities had to prove the employer mistakenly regarded them as having impairments that substantially limited a major life activity. The ADAAA will now hold an employer liable under a “regarded as” theory if individuals can prove discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity.
There is some good news for employers on the “regarded as” front. The ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. Also, employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts of appeals were previously split.
The Potential Impact of the ADAAA on Employers
Litigation under the ADA will no doubt become more complex as the emphasis shifts away from whether plaintiffs are disabled and toward questions of whether employers have complied with the law. While employers have traditionally prevailed in more than 90 percent of all ADA lawsuits, this was principally due to the difficulty plaintiffs had in proving they were “disabled” under the statute. With this largely removed, employers should be prepared to litigate more challenging issues, such as the scope and meaning of “reasonable accommodation,” “undue hardship” and “essential job functions” to establish compliance with ADA obligations.
Some other emerging ADA areas will likely include: whether specific performance or conduct standards are “job-related and consistent with business necessity”; what workplace risks satisfy the ADA’s “direct threat” standard; and standards for determining whether an employer has sufficiently explored “reassignment” as a reasonable accommodation. Employers are also likely to see a rise in “regarded as” claims in light of the ADAAA’s lower evidentiary standard for proving these claims. Beyond litigation, employers will need to provide reasonable accommodations with much greater frequency.
What Employers Should Do Now
With the ADAAA going into effect on January 1, 2009, now is the time for employers to review existing procedures for ADA compliance at every stage, including hiring, medical testing, accommodation, leave and termination. Employers must prepare to inject flexibility into their policies and practices to meet the ADA’s demanding standard for reasonable accommodations. According to Mr. Alvarez, “Employers should train supervisors on individualized assessments and develop protocols or guidelines for responding to workplace limitations posed by injuries or illnesses. Forget about trying to discern whether someone meets the ADA definition of ‘disability’ – it’s a litigation issue at best, and, in most cases, a losing one.”
Among other things, Mr. Alvarez suggests employers review job descriptions since they are frequently a starting point for an individualized assessment. Employers also should consider implementing a formalized process for addressing reasonable accommodation requests or reviewing reasonable accommodation procedures already in place. Employers skilled in “individualized assessment” often rely on forms, internal guidelines, or template letters to help facilitate communication with individuals with disabilities and their healthcare providers. These practices will become both more common and indispensable as employers grapple with a more demanding and relevant ADA.
Summing up the import of the ADAAA’s passage, Mr. Alvarez offered the following: “The nation clearly supports efforts to protect people with disabilities. No one can argue with the statute’s intentions. But supporting and implementing this law are two different things. Employers need to accept, embrace and master uncertainty. The ADA is a concept law. There are few bright lines or hard and fast rules. People with disabilities feel like they have been denied the rights they were promised back in 1990. Come January 1, 2009, employers should expect to see a significant shift in efforts to enforce the ADA’s prohibitions against disability discrimination. Some employers are ready. Many are not.”
Prepared by Jackson Lewis LLP. www.jacksonlewis.com
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