E-Newsletter

August 2008

Congressional Expansion to What Constitutes a "Disability" Appearing Imminent: Act to Amend the ADA Passed by the House of Representatives, on to Senate

Keith E. Kopplin, Esq.
kek@kclegal.com

On June 25, 2008 , in a move that was closely watched by employers and civil rights organizations, the United States House of Representatives approved legislation to amend the Americans with Disabilities Act (ADA) by an overwhelming 402-17 margin.  According to H.R. 3195, a number of United States Supreme Court cases "narrowed the broad scope of protection intended to be afforded by the ADA , thus eliminating protection for many individuals whom Congress intended to protect."  Therefore, the ADA Amendments Act of 2008 was introduced "[t]o restore the intent and protections of the Americans with Disabilities Act."  On July 31, 2008 , similar legislation (S. 3406) was introduced in the United States Senate, co-sponsored by 56 of 100 senators, including presumptive presidential nominees Barack Obama (D-IL) and John McCain (R-AZ).  Senate Bill 3406 is expected to be put to a vote shortly after Congress reconvenes from its five-week recess in September. 

In light of its broad, bipartisan support, it appears likely that the ADA Amendments Act will not only pass the Senate, but also be signed into law by the President.  In fact, in a statement of policy issued a day before H.R. 3195 was passed, the Bush Administration said that it "strongly supports the overall intent" of the legislation.  In addition, however, the statement cited concerns that "a few of the provisions could unduly expand ADA coverage, would result in a significant increase in litigation, and would be difficult to implement."  As outlined below, these provisions would, in fact, dramatically alter the landscape of disability discrimination law by entitling many more individuals to the ADA 's protections; as such, employers should continue to monitor this development as it unfolds to ensure that they remain in compliance with the law.

Passed in 1990, the ADA prohibits employers from discriminating against individuals because of a disability "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."  In other words, employers are prohibited by the ADA from taking adverse actions against applicants or employees because of a disability.  Additionally, "discrimination" under the ADA includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee."  The key question presented by the ADA is what constitutes a disability?

By definition, a "disability" is, with respect to an individual, "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."    Although this definition, and related regulations, provided some insight into what constitutes a disability, it was not until two key United States Supreme Court cases were decided almost a decade after the ADA was enacted that the scope of the term "disability" became clearer and, to the benefit of employers, narrower.

In Sutton v. United Airlines, Inc., the Court, citing to the findings contained in the ADA 's text that an estimated 43 million individuals are disabled, held that corrective and mitigating measures should be considered in determining whether an individual has a disability.  In other words, if an individual's impairment is not substantially limiting to a major life activity when controlled by medication or through the use of corrective measures, like eyeglasses or prosthetic devices, the Sutton Court held that it was not a disability entitled to the protections of the ADA .  According to the Court, "[h]ad Congress intended to include all persons with corrected physical conditions among those covered by the Act, it undoubtedly would have cited a much higher number of disabled persons in the findings."

Then again, three years later, the United States Supreme Court further limited application of the ADA by holding that the analysis of whether an individual is substantially limited in the performance of a major life activity must focus on the individual's limitations in daily life, not just at work.  Toyota Motor Mfg., Ky. , Inc. v. Williams.  As such, if an individual experienced substantial limitations from an impairment while at work, but was otherwise unlimited (or insubstantially limited) by that impairment in their daily life, they would not qualify as "disabled" under the ADA .  According to the Toyota Court, the terms "substantially" and "major" from the statutory definition of "disability" must be "interpreted strictly to create a demanding standard for qualifying as disabled."

Now, however, with the passage of the ADA Amendments Act appearing imminent, Congress is on the verge of broadening the scope of the ADA .  Among other things, the ADA Amendments Act would reject the requirement announced in Sutton that the analysis of whether an impairment substantially limits a major life activity should be made with consideration to mitigating measures.  Although the ADA Amendments Act would permit consideration of ordinary eyeglasses, it would expressly exclude consideration of medication and prosthetic devices, among other things.  Thus, individuals with conditions such as muscular dystrophy, diabetes, epilepsy, and cancer, which can sometimes be controlled by medication, would be "disabled" under the new law and entitled to its protections.  The ADA Amendments Act would also reject the requirements announced in Toyota that the terms "substantially" and "major" be interpreted strictly to create a demanding standard for qualifying as disabled, and that the analysis focus on the individual's activities in daily life.  These changes, if enacted, would entitle many more individuals to the ADA 's protections, including reasonable accommodations at work.        
              
If signed into law, the ADA Amendments Act of 2008 would become effective January 1, 2009 .

For more information about this or other employment law issues, contact educational services at (414)423-1330.