Section Review

Through Corrective Lenses: Congress’ Attempt to Re-Focus the Americans with Disabilities Act of 1990

Introduction

On September 25, 2008, President George W. Bush signed the Americans with Disabilities Amendments Act (ADAA or "the Act") of 2008 into law. The Act significantly expands the original scope of the Americans with Disabilities Act ("ADA") of 1990, which became law by the pen of his father, President George H. W. Bush. The recent legislation received wide bipartisan support as it swiftly moved through the legislative process and has the potential to bring sweeping change to the practice of disability discrimination. While proponents of employee rights appear elated at this liberalization of the statute, some management-side advocates caution that the ADAA will irreparably erode an employer's ability to successfully challenge the criteria for disability qualification. This article explores the new amendments and their anticipated impact on this hotly contested area of law.

The ADA

Citing Congress' findings that "some 43,000,000 Americans have one or more physical or mental disabilities," 42 U.S.C. § 12101(a)(1), and that "individuals with disabilities are a discrete and insular minority" who have been "subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society," § 12101(a)(7), in 1990 the ADA represented one of the most significant pieces of Civil Rights legislation in history. This ground-breaking legislation was designed to protect individuals with disabilities from discrimination in the workplace and to allow disabled workers a fair opportunity to succeed on the job.

By way of review, the ADA extended rights primarily to those that meet the definition of being disabled. The statute defines "disability" using a three pronged approach, as follows:

(A) a physical or mental impairment that

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

§12101(2).

In the years following enactment of the ADA, this definition became subjected to increasingly restrictive interpretation by the Courts.

substantially limits one or more of the major life activities of such individual;

Principal Changes to the ADA

While the Act retains the original language in the definition of "disability" set out in the ADA, the Act significantly expands the ADA's coverage by loosening the criteria used to interpret that definition, consistent with the original intent of Congress. Specifically, the Act is Congress' response to two landmark Supreme Court decisions:

Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)(impact of mitigating measures, such as medicine and assistive devices must be considered in determining whether a "substantial limitation" exists) and Toyota Motor Manufacturing, KY, Inc. v. Williams, 534 U.S. 184 (2002)(to qualify as a "disability" under the ADA, impairment must have a substantial effect on employee's daily life, not just their ability to perform their job). The Act reflects the legislature's finding that the holdings in these cases have "narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect…" Pub. L. 110-325.

Mitigating Measures: A Response to

Sutton v. United Airlines

The Plaintiffs in

One of the more significant changes to the ADA is a response to this holding in

Sutton were severely myopic (near-sighted) twin sisters with uncorrected visual acuity of 20/200, but who used corrective lenses to aid their sight, who applied for commercial airline pilot positions with United Airlines. The airline required that their pilots possess an uncorrected visual acuity of 20/100 at a minimum. Therefore, neither sister was offered a position. The two subsequently filed suit under the ADA, arguing that the question of whether an employee's impairment is "substantially limit[ing]" should be assessed without regard to corrective measures, i.e. glasses or contact lenses that might improve their vision. The Court disagreed, finding that the sisters had failed to allege that they were disabled within the meaning of the ADA. More specifically, the Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment including, in this instance, eyeglasses and contact lenses." Sutton, 527 at 475. Sutton. The ADAA expressly provides that the ameliorative effects of mitigating measures (such as medication, prosthetics, hearing aids, medical equipment, learned behavioral or adaptive neurological modifications, assistive technology and/or accommodations) should not be considered while assessing whether an employee's impairment substantially limits a major life activity. Pub. L. 110-325; 42 U.S.C. § 12102 (4)(E)(i). Massachusetts, in contrast, has long recognized that employees' condition of disability should be determined without reference to any available corrective measures. This has been the law of the Commonwealth since Dahill v. Police Department of Boston, 434 Mass. 233 (2001)(citing and giving deference to Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B s. II.A.7 (1998)). Because under Massachusetts law disabling conditions are considered in their natural, unassisted state, plaintiffs often preferred to file their claims under state law, rather than federal, a trend that will surely shift under the Act. Ironically, given that the Sutton facts involved vision, a narrow ADAA exception exists as to "ordinary eyeglasses or contact lenses," the ameliorative effects of which may be taken into account when determining whether a person is disabled under the Act. 42 U.S.C. § 12102 (4)(E)(ii). This exception applies to "lenses that are intended to fully correct visual acuity or eliminate refractive error." Id.

Substantially Limits: Response to

Toyota Motor Mfg. of Kentucky v. Williams

The ADAA also repudiates the standard for "substantial limitation," as articulated in

The Act rejects the Court's narrow interpretation in

In addition to rejecting the

Williams. In Williams, an assembly-line worker, who was diagnosed with carpal tunnel syndrome, brought suit under the ADA alleging that Toyota violated the ADA by failing to provide her with reasonable accommodations. Williams claimed that she was qualified as "disabled" under the ADA because her physical impairments substantially limited her in performing several major life activities, including (1) manual tasks; (2) housework; (3) gardening; (4) playing with her children; (5) lifting; and (6) working. However, the Court found that she did not qualify as disabled, holding that in order to be substantially limited in a major life activity 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." Williams 534 U.S. at 198.Williams and states "that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." Pub. L. 110-325 Section 2(B)(5). The Act directs the EEOC to issue regulations liberalizing this standard, so the final chapter on the agency's interpretation has yet to be written. We do expect that the Act's practical affect will be to direct inquiry upon whether an entity is providing reasonable accommodations or engaging in an interactive process with disabled individuals as opposed to whether an individual is substantially limited in a major life activity.Williams standard, the Act also deviates from the Equal Employment Opportunity Commission's regulations, which define the phrase "substantially limits" too restrictively. The current regulations require a condition to cause an individual to be unable or to be significantly restricted in his or her performance of a major life activity as compared to the average person. 29 CFR § 1630.2. Regarding the major life activity of working, an individual must be significantly restricted from performing a class of jobs or a broad range of jobs. Id. We await the EEOC response to their regulatory mandate on this issue.

Expansion of the List of "Major Life Activities"

In rejecting the

Williams holding for its strict analysis of what constitutes a major life activity, the ADAA further expands coverage of a vast array of afflictions by including two non-exhaustive lists of major life activities. The first list includes many of the major life activities that the EEOC has previously recognized such as walking, caring for oneself, performing manual tasks, seeing, hearing, speaking, breathing, learning, and working. In addition, the ADAA adds eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating as major life activities. "Major Bodily Functions" have also been added to the list and include "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." Pub. L. 110-325; 42 U.S.C. § 12102 (2)(B).

Episodic Conditions

The ADAA further clarifies that individuals who suffer from episodic impairments or who are in remission are still considered disabled under the Act, as long as the impairment would substantially limit a major life activity when the condition is active. Thus, with the expansive coverage provided by the ADAA, individuals who suffer from illnesses that have periods of dormancy, such as cancer or epilepsy, now meet the definition of disability and accordingly, are entitled to protection under the Act.

"Regarded As"

The third prong of the ADA's definition of "disability" involves being "regarded as" having an impairment. 42 U.S.C. § 12101 (3). The Act expands prior coverage by providing that individuals can demonstrate that they were "regarded as" being disabled by showing that they were subjected to an action prohibited by the ADA based on an actual or perceived impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. In other words, employees can sufficiently meet this third prong of the definition simply by showing that they have suffered some form of adverse employment action based on perceived physical or mental impairment. The impairment does not have to qualify as a "disability" given that major life activities are not considered in this analysis.

Reasonable Accommodations

While the definition of "reasonable accommodation" does not change under the ADAA, the Act clarifies that individuals who meet the first and second prongs of the definition of disability are entitled to reasonable workplace adjustments. Individuals who are merely "regarded as" disabled are not entitled to accommodations. 42 U.S.C. § 12111.

Conclusion

Because the ADAA became law only this year and the EEOC has yet to issue its highly anticipated regulations, the impact of the amendments remains largely uncertain. The consensus thus far is that, with the expansion of coverage, many individuals who were not previously covered under the ADA will now find protection as "disabled." Employers must now focus far more attention on the reasonable accommodation analysis, the interactive process and the consistent treatment of disabled and able employees. Therefore, it is anticipated that the focus of ADA practice will shift dramatically from whether an employee is disabled to whether an employer is properly complying with its affirmative obligations to provide accommodations to disabled employees as mandated by the ADA.

The management bar no doubt believes that the amendments have irreparably eroded employers' ability to challenge the nature of an alleged impairment and that the Act will open the floodgate to accommodation requests and related litigation. Employee advocates suggest the changes will clarify confusing Court precedent, so as to protect those with legitimate disabling conditions in accordance with the broad scope of the ADA. Only time will tell whether the ADAA effectively clarifies former areas of dispute and whether the expansion of coverage will effectively protect individuals with disabilities from workplace discrimination.1

 

 

Notes

1.  The authors wish to express their deep appreciation for the editorial support and assistance of Bronwyn Roberts, Esq., Denise Murphy, Esq., Cathy Reuben, Esq., David Fried, Esq., Ethan Klepetar, Esq., Kendra Zysk, Ryan Ciporkin, Esq. and Michael Mason, Esq.



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