Congress Expands Scope of Federal Disability Discrimination Law

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008 (the “ADAAA” or the “Act”). The bill (S. 3406) was approved by the U.S. House of Representatives on September 17, 2008, after receiving unanimous approval in the Senate the previous week. The ADAAA will take effect on January 1, 2009. This client alert reviews the major changes being made to federal disabilities law under the ADAAA.

Also in September, the Equal Employment Opportunity Commission issued new guidance on the ADA, focusing on the application of performance and conduct standards to employees with disabilities. Much of the guidance confirms well established principles. However, it includes some statements of interest to employers.

New Law Overturns Several Supreme Court Cases

The new amendments will overturn several Supreme Court rulings that limited the definition of “disability” in the Americans with Disabilities Act (the “ADA”), including Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). In these cases, the Supreme Court held that under the ADA, the determination of whether an individual’s impairment “substantially limits” one or more major life activities must be made with reference to the mitigating measures employed, including measures such as medication, adaptation and assistive technology. For example, in Murphy, an employee with hypertension was held not to be disabled because the employee functioned normally when taking medication. Additionally, the new law will overturn the Supreme Court’s decision in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), in which the Court ruled that in order for individuals to be substantially limited in the major life activity of performing manual tasks, and therefore found to be disabled under the ADA, they must have an impairment that prevents or severely restricts activities that are of central importance to most people’s daily lives. The Court also held that an impairment’s impact must be permanent or long term.

The ADAAA provides protection to a much greater number of individuals than the ADA, because it substantially broadens the definition of “disability.”  The new law will remove a finding originally contained in the ADA that some 43 million Americans have one or more disabilities. This number was often used by the courts to demonstrate that Congress did not intend to bring under the statute’s protection all individuals with some sort of impairment.

Key Changes to the Term “Disability” under the ADAAA

Under the prior law, the term disability was defined as: (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. The ADAAA preserves this fundamental definition, but broadens its scope so that it will be interpreted more consistently with how the courts applied the definition of a handicapped individual under the Rehabilitation Act of 1973 (which applies to certain federal contractors).

Major Life Activities

The new law presents a broad, non-exhaustive list of “major life activities,” which includes: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  In addition, the term “major life activities” now includes the operation of a major bodily function, including “functions of the immune system, normal cell growth, digestive, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 

The “Substantially Limits” Standard

The new legislation does not define the term “substantially limits.”  Instead, Congress has required that the term “be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.”  In the ADAAA’s “Findings and Purposes” section, Congress specifically rejects the Toyota case, in which the Supreme Court held that individuals with impairments that prevent them from performing specialized manual tasks at work are not considered to be substantially limited in performing manual tasks unless the impairment prevents or severely restricts them from doing activities that are of central importance to most people’s daily lives. The ADAAA states that this interpretation required a “greater degree of limitation” than Congress originally intended.

Additionally, Congress overturned the Court’s ruling that an impairment must be permanent or long term. Instead, the new law states that an impairment that is “episodic or in remission” may be a disability if it would substantially limit a major life activity when active.    

The ADAAA expressly delegates to the Equal Employment Opportunity Commission (“EEOC”) the authority to issue regulations “implementing the [law’s] definitions of disability,” with the proviso that the EEOC’s existing regulations set “too high a standard” in defining the term “substantially limits.”  The agency’s current regulations state:

1. The term substantially limits means:
       (i) Unable to perform a major life activity that the average person in the general population can perform; or
       (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Given the ADAAA’s directive that “[t]he definition of disability … shall be construed in favor of broad coverage of individuals,” and that “the question of whether an individual’s impairment under the ADA should not demand extensive analysis,” it reasonably can be anticipated that the EEOC will significantly loosen its definition in order to expand the ADA’s coverage, and that this may entail eliminating the requirement that comparisons be made to “the average person in the general population.”

Mitigating Measures

The ADAAA requires that the determination of whether an individual is disabled must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, assistive technologies, or reasonable accommodations. This is a clear rejection of the decision in Sutton, which held that a determination of whether an individual is substantially limited in a major life activity, and therefore disabled under the ADA, requires consideration of corrective or mitigating measures for a physical or mental impairment.¹

The new law provides an exception to the rule for “ordinary” eyeglasses and contact lenses, which should be considered in determining whether an employee’s impairment “substantially limits” a major life activity.

“Regarded As” Having an Impairment

The third prong of the definition of “disability” in the ADA protects individuals who are “regarded as” having an impairment. The amendments now offer additional protection under this prong by providing that an individual meets this requirement by establishing that “he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” (emphasis added). The ADAAA also clarifies that the law does not require employers to provide reasonable accommodations for individuals who are “regarded as” (but are not actually) disabled. Further, the law states that individuals with impairments that are “transitory and minor” (defined as those with an actual or expected duration of six months or less) are not entitled to protection under the “regarded as” prong.

Provisions Left Untouched

Several major provisions of the ADA were left untouched by the new law. These include the definition of reasonable accommodation, the requirement that disabilities be assessed on an individualized basis, and the definition of undue hardship.

EEOC Issues New Guidance

Shortly before the ADAAA was enacted, the EEOC issued new guidance entitled “The Americans With Disabilities Act:  Applying Performance and Conduct Standards to Employees With Disabilities.”  Much of the new guidance reiterates well established principles. However, the EEOC’s positions of interest to employers include the following:

• If an employee requests accommodation for the first time in a disciplinary meeting, the employer may impose the planned discipline but should also begin the interactive process to explore possible accommodations.
• If an employer learns of a disability or a request for accommodation for the first time in a termination meeting, the employer may go forward with the termination.
• If an employer has concerns about whether an employee is receiving proper treatment, the employer is nevertheless prohibited from requiring the employee to change treatment.
• Employers need not grant leaves of absence of indefinite duration as a reasonable accommodation.

The new guidance can be accessed on the EEOC’s website here.

Practical Effects of the ADAAA

As a result of the passage of the ADAAA, the number of disability discrimination claims is likely to increase. Further, the ADAAA will make it more difficult for employers to obtain summary judgment by establishing that the employee’s impairment is not substantially limiting, and thus it will be harder to avoid jury trials over whether they discriminated against the employee or failed to reasonably accommodate the employee’s disability. The focus of such cases will be on the employer’s motives for any adverse actions taken against the employee and their reasons for denying requested accommodations.

The full impact of the ADAAA will not be known until the EEOC issues new regulations interpreting the term “substantially limits.” At this time, it would be prudent for employers to assume (as a rule of thumb) that anyone with a medical or psychiatric impairment that is expected to last six months or more is entitled to protection. If an employee who may be entitled to protection requests an accommodation for his or her impairment, it would be prudent for the employer to engage in an interactive process with the employee to consider whether the requested accommodation is reasonable, not unduly burdensome, and would enable the employee to effectively perform his or her job. In light of the inherent ambiguities involved in a case by case analysis of whether an impairment constitutes a disability entitled to protection under the law, many employers adopted conservative approaches along these lines prior to the recent amendments.

The new law does not change several important principles under the ADA. A disabled employee still has the obligation to request a needed accommodation, and employees are not entitled to insist on their preferred accommodations if the employer has offered effective alternatives. Likewise, the requirement remains that disabled employees must be able to effectively perform their essential job functions, with or without reasonable accommodation. As in the past, a disability is not an excuse for poor performance or misconduct.