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Employment Law Blog

Friday, September 19, 2008

House Passes Bill Amending ADA

The U.S. House of Representatives passed legislation on Wednesday significantly amending the federal Americans with Disabilities Act.

The House vote follows the recent approval in the Senate. The bill will now go to President Bush. He is expected to sign the legislation.

Proponents of the bill have argued that U.S. Supreme Court decisions in the last decade have eroded rights of disabled workers.

As quoted in a House of Representatives press release: “The Americans with Disabilities Act guaranteed that workers with disabilities would be judged on their merits and not on an employer’s prejudices. But, court rulings since the law’s enactment have dramatically limited the ability of people with disabilities to seek justice under the law,” said Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Today we make it absolutely clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of a disability.”

Some of the more significant changes:

<u>Expanded Definition of Major Life Activities</u>

A disability is a physical or mental condition that substantially limits a “major life activity.” The ADA currently does not include a definition of “major life activities.” The EEOC regulations provide examples, and these are incorporated into the ADA by the amendment: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Most courts have followed the EEOC regulations and therefore this part of the amendment does not represent a major change.

However, the amendment adds “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This could lead to a substantial expansion of workers considered disabled under federal law, as it could potentially include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities.

<u>Disregard of Mitigating Measures</u> 

U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline’s policy required “uncorrected visual acuity” at a certain level, which the sisters did not have. The Supreme Court held that because the sisters’ vision was correctable, they did not satisfy the ADA definition of “disability” and therefore could not make out a claim for discrimination.

The ADA amendment rejects the Supreme Court’s interpretation of the ADA. Now, a worker may qualify as disabled under the ADA without regard to corrective measures such as medication, equipment, or appliances, low-vision devices (which do not include 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.

<u>Inclusion of Condition in Remission</u> 

The amendment expands the definition of disability include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active.

<u>“Substantially Limits” Liberalized</u>

A disability must “substantially limit” a major life activity. The Supreme Court and the EEOC has set a high standard for “substantially limits.” An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The ADA amendment rejects this standard.

But the amendment creates a definitional vacuum. The amendment does not provide an alternative definition. It merely states that the existing definition is invalid, and the ADA should be interpreted under a looser standard. Earlier versions of the legislation included a definition, but the definition was deleted as a compromise in order to pass the bill.

<u>“Regarded As” Restricted</u>

The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer.  The amendment excludes from “regarded as” claims minor/transitory conditions lasting six months or less.

It will be some time before the effects of the ADA amendment can be gauged. Undoubtedly, there will be a period of uncertainty while employers seek to comply with the new standards. An increase in federal disability law litigation is inevitable. The EEOC may issue new regulations or guides, which may help employers comply with the new standards.

In some states, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.

Employers should continue to monitor developments in ADA law and look for compliance advice in the coming months before the law becomes effective on January 1, 2009.

Text of the ADA amendment can be found here.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC