The ADA Amendments Act of 2008

Sharon Rennert

Office of Legal Counsel

EEOC

ADA Amendments Act of 2008

• Went into effect on January 1, 2009

• Based on Supreme Court precedent, statute not retroactive

• All provisions of the Amendments Act apply to the Rehabilitation Act

• Requires EEOC to draft regulations consistent with the Amendments Act

Why Did Congress Amend the ADA? (Part 1)

• Congress intended the ADA definition of disability to be construed broadly but courts were finding too many people outside the ADA’s protections

• The ADA’s definition of “disability” was based on Section 504 of the Rehabilitation Act of 1973, which courts pre-ADA construed broadly, but post-ADA construed narrowly

Why Did Congress Amend the ADA? (Part 2)

• The Supreme Court’s decisions in the Sutton trilogy (mitigating measures) and in Toyota Motor Mfg., KY v. Williams (severe restriction required) construed the term “disability” too narrowly

• Congress found that the EEOC’s current regulation, defining “substantially limits” as “significantly restricted,” sets too high a standard and thus was inconsistent with Congressional intent

Why Did Congress Amend theADA (Part 3)

• The Supreme Court’s decision in Toyota also incorrectly required that “substantial limitation” be a “demanding standard”

Definition of “Disability”

• Basic 3-part definition remains the same:

• A physical or mental impairment that substantially limits a major life activity;

• A record of such an impairment;

• Being regarded as having such an impairment

How Definition of “Disability” Changes (Part 1)

• Provides illustrative list of major life activities that includes for the first time “major bodily functions”

• Specifically rejects high standards used by EEOC and Supreme Court to define a “substantial limitation”

• Positive effects of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability”

How Definition of“Disability” Changes (Part 2)

• Impairment can be a disability even if episodic or in remission

• “Regarded as” Definition Expanded

• Remember: Goal of all of these changes is to broaden definition and make it much easier/quicker to find disability without a demanding analysis

Major Life Activities• Contains most of the major life activities

that EEOC has recognized• Contains some activities that EEOC has

not specifically recognized, such as bending, reading, and communicating

• Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions

• List of major life activities is not exhaustive

Substantially Limits• Congress clear that EEOC and Supreme

Court standards too high

• Congress not clear on what standard should be applied

• Legislative history still focuses on comparing the condition, manner, and duration in performing a major life activity as compared to most people in the general population

Mitigating Measures• medication, medical supplies, equipment, or

appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies

• use of assistive technology• reasonable accommodations or auxiliary aids or

services• learned behavioral or adaptive neurological

modifications (monocular vision, learning disabilities).

“Ordinary Eyeglasses or Contact Lenses”

• “Shall” take these into account in determining “disability”

• Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error”

• Distinguished from the mitigating measure of “low vision devices” which are defined as “devices that magnify, enhance, or otherwise augment a visual image”

Impairments that areEpisodic or In Remission

• Will be disabilities if substantially limit a major life activity when active

• Episodic: impairments that may not affect a person 24/7 but which periodically flare up: epilepsy, mental illnesses or disorders, multiple sclerosis

• In Remission: Cancers

“Record of” a Disability

• 2nd definition

• All of the changes reviewed for 1st definition (e.g., disregarding ameliorative effects of mitigating measures) would be applied to a “record of” situation

• Probably much more rare to need this definition for coverage given expansion of 1st and 3rd definitions

“Regarded As” Disabled• Covers anyone subjected to an action

“prohibited by this Act” because of an actual or perceived physical or mental impairment

• No requirement that employer perceive impairment to be limiting

• “Regarded as” would exclude impairments that are transitory (six months or less) and minor

• Individuals “regarded as” disabled not entitled to reasonable accommodation

“Regarded as” Disabled

• If employer makes employment decision (e.g., hiring, demotion, promotion, discipline, annual evaluation, compensation, termination) based on individual’s actual or perceived impairment, employer has regarded individual as having a disability and must defend its actions

Other Provisions• Employers using uncorrected vision

standards as a qualification standard for certain jobs must show that they are job-related and consistent with business necessity

• In the general prohibition of discrimination, the phrase “discriminate on the basis of a disability” replaces “discriminate against a qualified individual with a disability because of the disability of such individual”

Watch EEOC Website

• Summary of the ADA Amendments Act

• Watch for announcement about proposed regulation

• Watch for changes to EEOC publications affected by the ADA Amendments Act

• www.eeoc.gov

Helpful Documents

• Q&A on the ADA Amendments Act published by the Dept. of Labor

www.dol.gov/esa/ofccp (Highlights)

• Summary of the ADA Amendments Act published by the Job Accommodation Network

www.jan.wvu.edu/bulletins/adaaa1.htm

Sharon Rennert

• 202-663-4676

• Sharon.rennert@eeoc.gov