The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

The ADA Amendments Act of 2008
By William D. Goren

Most attorneys do not focus on the Americans with Disabilities Act the way I do. Nevertheless, an attorney could well run across an issue dealing with the Americans with Disabilities Act, especially now that the Act has been amended. Therefore, it is important that attorney’s have an overview of what the ADA Amendments Act of 2008 did to how the Americans with Disabilities Act had been interpreted by the courts over the years. These amendments overrule several United States Supreme Court decisions that had narrowed considerably the scope of the Americans with Disabilities Act of 1990. The amendments also clarify the regulatory authority for implementing the Americans with Disabilities Act of 1998 as well as give the regulators some guidance on what the subsequent regulations might look like.

The amendments made numerous changes to how a person with a disability is defined. Under the Americans with Disabilities Act, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity; has a record of such an impairment; or is regarded as having such an impairment .1 What the amendments do is give shape to these definitions in a way very different than what the courts have done over the years.

First, the EEOC had defined whether a person was substantially limited in a major life activity as occurring when that person was just significantly restricted in a major life activity when compared to the average person.2 With the amendments, Congress has made it clear that this standard goes too far and that the regulatory bodies will have to adopt a far more inclusive standard.3 This amendment also necessarily means that the case of Toyota Motor v. Williams’ determination of what was a substantial limitation on a major life activity (a person must be severely restricted or prevented from performing a major life activity to be substantially limited 4) has also been overruled.5 The EEOC in its proposed regulations implementing the ADA amendments act of 2008 has defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population.6

Second, the Sutton trilogy of cases7 has been overruled by the amendments. More specifically, mitigating measures- whether they be prosthetic devices, medicine the person takes, or something that the body does- are not to be factored into whether a person has a disability, with the exception of eyeglasses.8

Third, the amendments also add major bodily functions as being included in the definition of major life activities. More specifically, major bodily functions include, but are not limited to: Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain , respiratory, circulatory, endocrine, and reproductive functions.9 Finally, it should be noted that in its proposed regulations, the EEOC added to the list of major life activities the activities of sitting, reaching, and interacting with others.10

Fourth, the principle set forth by the Supreme Court in Sutton that in order to be regarded as having a disability, the employer must perceive both a physical or mental impairment as well as a substantial limitation on a major life activity 11 has also been overruled by the amendments. These amendments make clear that the only issue is whether the employer perceives a physical or mental impairment.12 This is a significant change and will significantly expand the ability of plaintiffs to make, "regarded as" cases. Before, such a case was very difficult to make because in essence it required the plaintiff to convince the court that the subjective state of the employer’s mind was that the employer perceived this as a substantial limitation on a major life activity in addition to their perceiving a physical or mental impairment.13 Before leaving the "regarded as" prong, the amendments made clear that a person regarded as having a disability is not entitled to reasonable accommodations.14

Fifth, under the original Americans with Disabilities Act of 1990, temporary impairments were not covered, but it was never clear how long the person had to be disabled for the impairment to be temporary. The amendments make clear that an impairment must be expected to last for at least six months or more.15

Sixth, the amendments strongly suggest that disability discrimination will now turn on whether the disability was a motivating factor for the discrimination , rather than on whether disability discrimination was the sole cause for the discrimination since "because" has been stricken in favor of "on the basis of disability".16 17

Seventh, even though eyeglasses, as mentioned above, are factored in to whether a person has a disability, the amendments make clear that requiring a test assessing uncorrected vision can only be done if it is job related to the position and consistent with business necessity.18

Eighth, there are some people that have disabilities that flare up from time to time and when they do, it can be quite debilitating. Prior to the amendments, people who have disabilities that are episodic or in remission thus go to would not have been covered as a person with a disability under the Americans with Disabilities Act. Thus The amendments make clear that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.19

Finally, the amendments give clear authority to both the Department of Justice and to the Equal Employment Opportunity Commission to formulate regulations going to the definitions contained within the Americans with Disabilities Act.20 One of the ways the Supreme Court had narrowed the scope of the ADA in the way that it did was to say that Congress never gave the regulatory bodies any authority over the "definition sections" of the law, and so the Supreme Court felt free to come up with their own definitions.21 Thus, by giving regulatory bodies this authority, the ability of the court to discount regulations as they have been previously done is restricted.

In its proposed regulations, the EEOC has taken advantage of this authority in at least two respects. First, they make it quite clear that it is no longer the issue of whether an activity is of central importance to most people’s daily lives with respect to the determination of whether a major life activity exists.22 Second, when it comes to the major life activity of working, the EEOC has changed the standard of how the major life activity of working will be reviewed. Under the proposed regulations, it is no longer a matter whether a person can do a broad class of jobs per Sutton, rather it is a question of whether the impairment substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue.23 Why a plaintiff would allege working at the major life activity considering the amendments is hard to fathom. Nevertheless, the EEOC proposed regulations are a dramatic change with respect to the major life activity of working.

In short, these amendments do a great job of restoring the original intent behind the Americans with Disabilities Act of 1990. It will mean more focus on reasonable accommodations and less focus on whether the person has a disability. It also eliminates some of the absurdities inherent in the common law interpretation of the Americans with Disabilities Act. For example, when you combine the holding in Sutton with the holding in Toyota Motor, you could get a situation whereby a person with a disability might be disabled depending upon the time of day since you had to consider mitigating measures and simultaneously assess whether they were severely restricted or prevented from performing a major life activity. Such a standard ignored the fact that mitigating measures with the exception of eyeglasses in many cases never cures the disability, rather they only compensate for it. It is also absurd to think that a person has a disability depending upon the time of day. For example, a person with a severe to profound hearing loss who wears hearing aids and functions in the hearing world, under the old system may or may not have a disability during the day, but at night, when those hearing aids come out, such a person would have a disability. Such an odd conclusion is no longer possible with these amendments.

1 42 U.S.C.A. § 12102(1) (West current through P. L. 111-62 approved 8 — 19 — 09).

2 29 C.F.R. § 12102 (2).

3 Pub. L. 110-325, § 2(b)(4), 122 Stat. 3533. May be found at the bottom of 42 U.S.C.A. § 12102 (West current through P. L. 111-62 approved 8 — 19 — 09).

4 See Toyota Motor Manufacturing, Kentucky, Inc. V. Williams, 534 U.S. 184, 198 (2002).

5 See EEOC proposed regulations implementing ADA amendments act of 2008, 74 Fed. Reg. 48431, 48440 (September 23, 2009).

6 Id.

7 Sutton v. United Airlines, 527 U.S. 471 (1999); Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999).; Murphy v. United Parcel Service, 527 U.S. 516 (1999).

8 42 U.S.C.A. at § 12102(4)(E)(1).

9 Id. at § 12102(2)(B).

10 74 Fed. Reg. at 48440.

11 Sutton, 527 U.S. at 489.

12 42 U.S.C.A. at § 12102(3)(A).

13 See Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780, 783-84 (8th Cir. 2006).

14 42 U.S.C.A. § 12201(h) (West current through P. L. 111-62 approved 8 — 19 — 09).

15 42 U.S.C.A. at § 12102(3)(B).

16 Pub. L. 110-325, § 5(a)(1), 122 Stat. 3533. May be found at the bottom of 42 U.S.C.A. § 12102 (West current through P. L. 111-62 approved 8 — 19 — 09).

17 In Gross V. FBL Financial Services, Inc., _ U.S. _, 129 S. Ct. 2343,2350, 2352 (2009), the United States Supreme Court focusing on the "because", language found in the Age Discrimination in Employment Act, held that sole cause was the standard for causation under the Age Discrimination in Employment Act. The fact that "because", has been replaced by, "on the basis of" is a strong indicator that Congress with the amendment to the Americans with Disabilities Act , did not intend for a sole cause standard to be adopted.

18 Pub. L. 110-325, § 5(b), 122 Stat. 3533. May be found at the bottom of 42 U.S.C.A. § 12102 (West current through P. L. 111-62 approved 8 — 19 — 09).

19 42 U.S.C.A. at § 12102(4)(D).

20 42 U.S.C.A. § 12205a (West current through P. L. 111-62 approved 8 — 19 — 09).

21 See Toyota Motor, 534 U.S. at 194-98.

22 74 Fed. Reg. at 48440.

23 See 74 Fed. Reg. at 48442.

William D. Goren, J.D., LL.M., a longtime member of the DuPage County Bar Association Publication Board, is an Instructor and the Paralegal Program Coordinator at South Suburban College, South Holland , Illinois. Mr. Goren has presented and published extensively on the rights of persons with disabilities , including two books on the Americans with Disabilities Act, (a third will be completed by the end of the year), all published by the American Bar Association . When he is not teaching, he provides consulting, expert witness services, and educational programming on the Americans with Disabilities Act and on the Rehabilitation Act of 1973. Mr. Goren received his Bachelor’s from Vassar college, his J.D. from the University of San Diego , and his LL.M. in health law from DePaul University.

 
 
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