Recent Changes to the ADA - the 2008 Amendments

Recent Changes to the ADA -the 2008 Amendments to the ADA
Charles R. Bailey, Esquire

Introduction
• The Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq. prohibits
discrimination on the basis of disability in
employment; state and local government;
public accommodations; commercial facilities;
transportation; and telecommunication, as
well as the United States Congress.1
Americans with Disabilities Act (ADA). A Guide to Disability Rights Laws.
(2009)

Introduction
• On January 1, 2009, the ADAAA went into effect changing
the way the definition of “disability” will be interpreted.
• Congress has amended the ADA with the ADA
Amendments Act of 2008 to legislatively reverse four key
Supreme Court decisions and substantially expand the
number of persons covered by the law.
•
•

Sutton v. United Airlines, 527 U.S. 41 (1999);

Murphy v. Untied Parcel Service Inc., 527 U.S. 516 (1999);
• Albertson’s Inc. v. Kirkinburg, 527 U.S. 555 (1999); and
• Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184 (2002).

Background
• In a trio of cases in 1999, the Sutton trilogy,
the Supreme Court narrowly defined coverage
under the ADA ruling that in determining
whether a person with a correctable condition
has a disability under the first “prong” of the
ADA (a physical or mental impairment that
substantially limits a major life activity), the
effects of the person’s corrective measure
(e.g. eyeglasses, medication) must be
considered.

Background: Sutton v. United
• Sutton v. United Airlines, 527 U.S. 41 (1999)
• Facts: Identical twins with myopia not hired as
pilots because they did not meet the
minimum vision requirement. Without
glasses or contacts (corrective measures) they
could not drive a vehicle, watch TV, or shop.
With glasses or contacts, they could function
as an individual without a similar impairment.

• Issues:
1) should the determination that a physical
impairment is substantially limiting be made
without reference to corrective measures that
mitigate the impairment; and
2) is poor vision regarded as an impairment
that substantially limits the Suttons in a major
life activity.

Holding
• That the plaintiffs were not disabled because
their eyesight was corrected with glasses. The
determination of disability under the ADA should
be made in reference to an individual's ability to
mitigate his or her impairment through corrective
measures.
• That for an employee to establish she was
“regarded as” disabled, the employee had to
prove the employer regarded her as having an
impairment that would qualify as an actual
disability.

• Rationale: Although each plaintiff

suffered from severe myopia, their
vision was correctable with glasses
and both plaintiffs were able to
function normally in their daily lives;
thus, the plaintiffs were not disabled
because their eyesight was corrected
with glasses on, mitigating measures.

Background: Sutton Trilogy
• The premise in these holdings is that if an individual’s
physical or mental impairment does not substantially limit
or affect the person, that person does not actually suffer
from a disability. The determination of whether an
individual is disabled must take into account the effect of
the remedial measure taken to correct or mitigate the
physical or mental impairment.
• The Court found that the individuals in these cases are not
persons with disabilities under the first prong of the ADA
because when they are evaluated in their corrected state,
they are not substantially limited in any major life activity.
Parry, John. Mental Disability Law, Evidence and Testimony. American Bar
Association. (2007).

Background: Toyota
•

In Toyota Motor Manufacturing, Kentucky,
Inc., v. Williams, 535 U.S. 184 (2002), the
Supreme Court further narrowed the scope of
the ADA which held that the terms
“substantially” and “major” in the definition
of disability under the ADA “need to be
interpreted strictly to create a demanding
standard for qualifying as disabled.”

Background: Toyota
• Facts: the Plaintiff alleged that Toyota failed to
provide adequate reasonable accommodation for
her disability as required by the ADA. Plaintiff
suffered from carpal tunnel syndrome and other
muscular-tendon condition that limited her
ability to lift objects and hold her arms over her
head for long periods of time. Toyota had
changed her role in their plant several times, but
she was once again asked to perform a job that
involved lifting..

Background: Toyota
• Issue What standard should be used when determining that
someone is disabled in a way that substantially limits them
from performing manual tasks?
• Holding: employee’s carpal tunnel syndrome was not a
disability because it was not “substantially limiting.”
• An employee is substantially limited in performing manual
tasks when he or she has an impairment that "prevents or
severely restricts the individual from doing activities that
are of central importance to most peoples’ daily lives."
• This interpreted the term “substantially limits” strictly and
suggested that the ADA only protected employees with
“severe impairments.”.”

Overview of Changes
• The 2008 Amendments Act changes the ADA in four basic
ways:
– increasing the “major life activities” to be considered in
determining disability;
– overruling Sutton so that mitigating measures cannot be
considered in determining whether individuals are disabled;
– overruling Toyota and instructing the EEOC to broadly define the
term “substantially limits”; and
– expanding “regarded as disabled” claims so that plaintiffs must
only prove the employer regarded them as having a physical or
mental impairment (rather than requiring proof that the
employer perceived them to be limited in a major life activity).

Purpose of the Amendments
• The ADA Amendments Act is intended to
broaden and strengthen the protections
afforded to disabled persons by the ADA.
• Congress expressly rejected and overruled the
“extensive analysis” and high standard the
Court had employed previously in determining
whether an individual is disabled.

Why did Congress change the ADA?
• Congress also found that the Equal Employment
Opportunity Commission’s (EEOC) current regulation,
defining “substantially limits” as “significantly
restricted,” sets too high of a standard and thus was
inconsistent with Congressional intent.
• Congress intended the ADA definition of disability to be
construed broadly but the courts were finding too
many people outside the ADA’s protection as courts
and the government agencies were interpreting the
definition too narrowly.

Definition of Disability
• The basic three part definition of 42 U.S.C. § 12102(2) stays the
same, but how the definition will be interpreted has changed.
• "Disability" is defined under the ADA as:
(1) a physical or mental impairment that substantially limits one or
more major life activities;
(2) a record of such an impairment; or
(3) being regarded as having such an impairment. Central to the
first prong of this definition is the requirement that the impairment
substantially limits one or more major life activities.
129 C.F.R. 1630.2(g).

“The ADAAA changes the definition of
“disability” by the following changes:
• Provides illustrative list of major life activities
which includes for the first time “major bodily
functions.”
• Rejects the high standards used by the EEOC and
Supreme Court to define “substantial limitation.”
• The ameliorative (positive) effects of mitigating
measures (other than glasses or contacts) cannot
be considered in determining “disability.”
• Impairment can be a disability even if it is
episodic or in remission.
• The definition of “regarded as” is expanded.

“Substantially Limits”
• The ADAAA rejects the definition of
“substantially limits” in the Toyota case and in
EEOC regulations that define “substantially
limits” as “significantly restricted.”
• The ADAAA directs the EEOC to revise its
regulations to be consistent with the goal of
the Amendments to broaden the class of
persons covered by the ADA.

• When the ADA was enacted, Congress did not define
the term “substantially limits.”
• The EEOC filled this void with an elaborate regulatory
definition; according to the EEOC an impairment
substantially limits a major life activity if:
– the person is completely unable to engage in the major life
activity; or
– the person is significantly restricted in the major life
activity when compared to the average person in the
general population.
– these limitations must be permanent or long-term.
129 C.F.R. 1630.2(j).

“Substantially Limits” -- EEOC
• Under the ADAAA, Congress expressly delegated the
task to the EEOC of drafting regulations that define
"substantial limitation.“
• The EEOC has not yet drafted any such regulations.
According to their agenda, the EEOC will probably
address the regulations later this year.
• In the past, the EEOC defined “substantial limitation”
as "significantly restricted," but Congress told the EEOC
that this standard is too high.
Pub. L. No. 110-325, § 2(b)(6).

• Old Standard: an impairment "substantially
limits" a “major life activity" if it "prevents or
severely restricts the individual from
performing the activity." Toyota v. Williams.
• New Standard: reduces the degree of
impairment required for protection, and an
impairment that substantially limits one major
life activity is enough to be considered a
disability.

“Substantially Limits” &
“Mitigating Measures”
• The determination of whether an impairment
substantially limits a major life activity shall be
made without regard to the ameliorative effects
of mitigating measures such as medication,
prosthetics, hearing aids, mobility devices, and
oxygen therapy equipment.
• An individual is disabled if an impairment would
be “substantially limiting” without the assistance
of “mitigating measures.”
1 42 U.S.C. § 12102(4)(E).

“Mitigating Measures” What is a
mitigating measure?
• “Mitigating Measures” are things that lessen or
ameliorate the effects of an impairment, including, but
not limited to:
– medication, medical supplies, equipment, or appliances,
low-vision devices (not including ordinary eyeglasses or
contact lenses), prosthetics, including limbs and devices,
hearing aids and cochlear implants, or other implantable
hearing devices, mobility devices, or oxygen therapy
equipment and supplies;
– use of assistive technology;
– reasonable accommodations or auxiliary aids or services;
or
– learned behavioral or adaptive neurological modifications.

Old Standard
• Sutton v. United Air Lines, 527 U.S. 184 (1999);
Murphy v. United Parcel Service Inc., 527 U.S.
516 (1999), and Albertson’s Inc. v. Kirkingburg,
527 U.S. 555 (1999) - when determining
whether persons are disabled under the ADA,
mitigating measures (such as medication or
devices) were to be taken into account in
determining whether a person was
substantially limited in a major life activity.

New Standard
• ADAAA prohibits employers from considering the ameliorative
effects of mitigating measures, except for ordinary eyeglasses
and contact lenses.
• Now, when assessing an employee's physical or mental
impairment, an employer must determine whether the
impairment would substantially limit a major life activity if
corrective measures were not in fact being taken.
• Employee’s condition will be judged in the unmitigated state.
• This means that in an adverse employment issue of possible
discrimination, the employee's disabling condition will now be
considered without regard to mitigating measures.
Scofield, Trent. J., Reiss, Sandra B. The New and Expanded Americans with Disabilities Act. The Alabama State
Bar. 70 Ala. Law. 38, 41 (2009).

“Mitigating Measures” – not taken into
consideration examples
Examples of different employees who may now be considered disabled under the
ADAAA because the employer may not take into account the mitigating measure:
• “the medication of a legal assistant whom the employer knows has bi-polar
disorder;
• the weekly treatments of a waiter with HIV;
• the insulin used by an salesperson who is diabetic;
• the walking cane a plumber utilizes to walk:
• the low-vision device relied upon by the elementary school teacher with glasses;
• the prosthetic leg used by the foreman;
• the hearing aid or cochlear implant used by the customer service representative;
• the wheelchair used by a human resource manager; or
• the oxygen therapy required by the librarian.”
Scofield, Trent. J., Reiss, Sandra B. The New and Expanded Americans with Disabilities Act. The Alabama State
Bar. 70 Ala. Law. 38, 41 (2009).

“Mitigating Measures” Exception
• If a person is able to correct her vision with ordinary
eyeglasses or contact lenses, she is not substantially
limited in the major life activity of seeing.
• The ADAAA expressly requires consideration of the
ameliorative effects of "ordinary eyeglasses or contact
lenses" when assessing whether impairment
substantially limits a major life activity.
• The purpose of this exception is to prevent the many
individuals who wear either ordinary eyeglasses or
contact lenses from making claims of disability on those
grounds.
142 U.S.C. § 12102(4)(E)(ii).
May, Randi B.; Lowden, Kathleen. Broadening “Disability” – What Next? (2009).

“Episodic or Remission”
• Old standard: persons may not have been
covered depending on how long that person
experienced the impairment or condition.
• New standard: The ADAAA further broadens
the definition of "disability," by specifying that
an impairment that is episodic or in remission
is a "disability" under the ADA, if it would
substantially limit a major life activity when
active.

“Major Life Activities”
the ADAAA
• Clarifies and expands the category of major life
activities that can be substantially impaired.
• Provides an illustrative non-exhaustive list of
major life activities that the EEOC has not
specifically recognized: bending, reading,
communicating.
• List includes for the first time “major bodily
functions.”
• One major life activity substantially limited is
enough to be considered disabled.

“Major Life Activity”
Old Standard
• The courts had interpreted “major life activity”
narrowly to apply to only those functions that
were of “central importance to the individual’s
daily life.”
• Courts were split over whether conditions such as
gastrointestinal disorders, cancer, sleep disorders,
and heart disease, which often only affect bodily
functions without producing any outward
limitations, were classified as major life activities.

“Major Life Activity”
New Standard
• The ADAAA specifically adds a non-exclusive list of
examples of major life activities, and, in addition to the
activities recognized in the regulations promulgated by the
EEOC, it adds the following: eating, sleeping, bending,
reading, concentrating, thinking, and communicating.
• The ADAAA now includes a list of examples of major bodily
functions, which are now considered major life activities.
• The ADAAA specifically rejects the restrictive interpretation
of major life activity used by the U.S. Supreme Court in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002).

“Regarded As” Having an Impairment
• Under the ADA, an employee may fall within
“disbility” definition if his or her employer:
(1) mistakenly believes that the employee has an
impairment that substantially limits a major life
activity; or
(2) mistakenly believes that an actual non-limiting
impairment substantially limits a major life
activity.
Murray, John E. The ADA AMENDMENTS ACT OF 2008: Redefining Who is
Disabled. 81-DEC Wis. Law. 12, 15. (2008).

“Regarded As” having an impairment
Old standard
• An individual could not be regarded as disabled
unless that person was mistakenly perceived to
have a condition that prevented or severely
restricted the ability to engage in activities of
central importance to most people's daily lives.
• An individual claiming that he or she was
“regarded as” having a disability had to prove
that an employer regarded him or her as being
“substantially limited in a major life activity.”
• very high requirement

New Standard
• The ADAAA stipulates that employees do not have to prove
that an impairment actually limits or is perceived to limit a
major life activity. Now an individual will be regarded as
disabled if he or she was subjected to an action prohibited by
the ADA “because of an actual or perceived physical or mental
impairment” regardless of whether that impairment actually
limited or was perceived to limit a major life activity.
• A person also is regarded as disabled if an employer rejects
that person because the employer mistakenly believes that a
condition disqualifies the person from a particular job.
Price, Vedder. Congress Expands ADA Coverage. (2008).
242 U.S.C. § 12102(3)(I).

New Standard
• The ADAAA exempts "minor" and "transitory"
impairments from coverage under the ADA's
"regarded as" category. Transitory is defined as
“an impairment with an actual or expected
duration of six months or less.”1 Therefore,
impairments that are transitory or minor which
have an actual or expected duration of less than
six months are not considered disabilities under
the “regarded as” prong of the definition of
disability.
Luongo, Tiffany. The ADA Amendments Act of 2008: Another Effort to Eliminate Discrimination Against
the Disabled. (2008)

“Regarded As” Having an Impairment clarified
• The ADAAA clarifies that an employer’s duty to accommodate does
not extend to those individuals who make discrimination claims
under the “regarded as” prong of the definition of disability.
• The ADAAA now makes clear that employers have no duty to
accommodate individuals who are regarded as disabled.
• The new law leaves the employer’s reasonable accommodation
obligation unchanged.
• The ADAAA makes it clear that employers must provide reasonable
accommodation only to individuals who have an impairment that
substantially limits a major life activity.
Price, Vedder. Congress Expands ADA Coverage. (2008)..
Wilson, Stephanie; Krulewicz, E. David. Disabling the ADAAA. New Jersey Lawyer. (2009).
Edwards, Margaret H.; Martin, Patrick F.. Congress Tells the Courts How to Interpret the ADA. (2008).

Reasonable Accommodation
• The definition of reasonable accommodation
did not change; however, with a broader
definition of disability, more focus will be
placed on the employer’s obligations in
providing reasonable accommodations.

Is the ADAAA Retro-active?
Jenkins v. National Board of Medical Examiners, No. 085371 (6th Cir. Feb. 11, 2009)
• In an unpublished opinion, U.S. Court of Appeals for
the 6th Circuit (KY, MI, OH, TN) ruled that the provisions
of the ADA Amendments Act apply to a claim brought
under the ADA prior to the ADAAA having been
enacted. The court found that because the plaintiff
sought prospective relief, “no injustice would result
from applying the amended law,” and the that ADAAA
did not direct that its amendments should not apply to
a pending case for prospective relief.

4th Cir. Clarifies When EEOC Decisions
are Final
• The parties’ dispute turns on a 1999 Amendment to the
EEOC regulation that defines a “final decision.”
• The government argued that the amendment significantly
and fundamentally changed the rules regarding finality by
permitting a tolling of the ninety(90) day period only when
the EEOC grants an employee’s motion for reconsideration.
• Cochran filed a timely motion for reconsideration to the
OFO, but that motion was denied. Next, Cochran sought
relief in federal court, filing a complaint in the U.S. District
Court for the District of Columbia exactly ninety (90) days
after the OFO denied his motion for reconsideration.
• Court found a timely motion for reconsideration delays the
running of the ninety (90) day limitations period.

STATES NOT IMMUNE TO EEOC ACTION:
9TH CIRCUIT
State of Alaska, Office of the Governor, v. EEOC, No. 07-70174 (9th Cir. May 1, 2009)
• Facts: Two policymaking employees of the former Alaska Governor's office sued
for sexual harassment, sex and race discrimination in pay, and retaliation for
opposing harassment.
• State argued that GERA violated the 11th Amendment to the extent it purported to
strip states of their prior immunity from suits by policymaking members of the
governor’s staff.
• The Court found that GERA’s reference to states as potential defendants who must
answer in damages was clear with respect to state employees’ claims that the
state violated their Fourteenth Amendment right to equal protection by engaging
in race- and gender-based pay discrimination.
• “GERA expressly covers state employees, and expressly gives them a right to
collect damages ‘payable by the employer’—the state,” he wrote. “The only way
Congress could have been clearer would have been to say ‘this act abrogates state
sovereign immunity.’”

How ADAAA impacts litigation
• The ADAAA expands the definition of disability
and almost certainly will increase the number
of accommodation requests, disability
discrimination charges, and federal lawsuits by
employees.
Burtka, Allison Torres. ADA Amendments Take Effect, Broadening Disability
Protections. 45 JAN Trial 14, 14 (2009).
Mathis, Benton J., Morrison, Kelly E.. ADA Amendments and Upcoming Legislation.
(2009).

ADAAA Litigation
• Based on Congress’ intent and the language “the question
of whether an individuals impairment is a disability under
the ADA should not demand extensive analysis” suggests
that courts will be hesitant to dismiss cases on the basis of
a finding that the employee has no disability.
• Because the ADAAA expands the scope of those protected
and broadens the definition of “disabled,” and because the
ADAAA specifically directs the attention of the analysis not
to be on the individuals disability, it is likely that more ADA
cases will end up going to trial rather than being resolved at
summary judgment.
Luongo, Tiffany. The ADA Amendments Act of 2008: Another Effort to Eliminate Discrimination Against the Disabled. (2008).

James, Ben. ADA Changes Will Mean More Cases Go To Trial. (2009).

Shift in Focus:
Accommodations and Causation
• The focus of litigation will shift from whether an
individual is disabled, to whether the employer
met its obligation of providing a “reasonable
accommodation” to an otherwise qualified
applicant or employee with a disability, unless the
employer can show that the accommodation
would impose “undue hardship” on the operation
of the business of such covered entity.
O’Toole, Daniel; Foster, Jovita. ADA Amendments Expands Protection.
Missouri Lawyers Weekly. (2008).

Recent Changes to the ADA - the 2008 Amendments

Recent Changes to the ADA - the 2008 Amendments

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