Maryland Bar Bulletin
Publications : Bar Bulletin : January 2010



President George W. Bush signed the ADA Amendments Act of 2008 (ADAAA) on September 28, 2008, which became effective January 1, 2009. The purpose of the Amendment was to construe the ADA more broadly in favor of the individual. The net result, however, is that more individuals will have a “disability” under the ADA, thereby burdening the employer and creating more uncertainty in this area of employment law.

The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The basic definition remains unchanged, but the “rules of construction” incorporated into the ADAAA direct the courts to adopt less-restrictive interpretations of key terms.

The Amendment significantly broadens the coverage of the ADA by overturning U.S. Supreme Court decisions and Equal Employment Opportunity Commission (EEOC) guidelines. In Sutton v. United Airlines, Inc. 527 U.S. 471 (1999), the Supreme Court construed the statutory definition of “disabled” narrowly. The Court decided that for an individual to qualify as “disabled” that determination, among other things, must be made with regard to mitigating circumstances. Based on Sutton, an individual with a hearing impairment who used a hearing aide would not be considered disabled. Likewise, individuals suffering from high blood pressure or diabetes, which could be controlled by medication, would not be considered disabled under the ADA.

The new Amendment rejects this reasoning, requiring the courts to evaluate health conditions “without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies or equipment….” This means individuals with high blood pressure or diabetes, even when controlled by medication, are now considered disabled under the ADA.

There is still an exception for those wearing eyeglasses and contact lenses. Courts can take into consideration the mitigating measure of corrective lenses in considering whether an individual qualifies as “disabled”. It is likely that individuals with poor vision will not be considered “disabled”.

The Amendment also rejects the Supreme Court’s interpretation of the term “substantially limits” from Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002) case. In Toyota, the High Court required a showing that the impairment “severely restricted” major life activities.  Congress viewed this interpretation as too demanding and, pursuant to the “rules of construction”, requires the courts to apply a less strident standard consistent with the purposes of the ADAAA. The EEOC is also directed to revise its regulations to include the new definition.

Other terms are expanded. The ADAAA enumerates what constitutes “major life activities” to include, among other things, “performing manual tasks,” “lifting,” “thinking,” and “communicating.” The term “major life activities” also includes “major bodily functions,” such as “digestive, neurological, respiratory, circulatory and reproductive functions.”

Coverage for “regarded as” disabled is expanded under the ADAAA to cover anyone subjected to an action “prohibited by this Act” because of a real or perceived physical or mental impairment. Only transitory and minor impairments are excluded, and this exclusion requires that the condition be both transitory (less than six months) and minor.

Consequently, the Amendment places additional stresses on employers to provide “reasonable accommodation” for a broader range of individuals, which would include those with high blood pressure and other controllable conditions. It is important that management not refer to an employee or potential employee’s perceived medical condition in making an employment decision. For example, transferring an employee because of diabetes would establish a “regarded as” disability claim.

The ADAAA does, however, include a few provisions which could be viewed as favorable to employers. Reverse discrimination claims are not allowed under the 2008 Amendment. This means that individuals who are not disabled cannot bring claims under the ADA, alleging that they were treated worse because they did not have a disability.

The employer is also not required to offer “reasonable accommodation” to individuals “regarded as” disabled. Thus, while employers are prohibited from taking an adverse action against an employee “regarded as” disabled, the employer is not required to provide “reasonable accommodation” to that employee.

The ADAAA still retains exclusions for “sex-based conditions,” such as transvestitism and gender-identity disorder. “Psychological-criminal” conditions, such as kleptomania or pyromania and use of illegal drugs, are excluded.

Nevertheless, the new Amendment brings uncertainty to this area of the law and an inevitable increase in litigation. Very likely, the term “substantially limits” will be litigated to determine what it means within the context of the ADAAA.

Susan Dixon graduated from WidenerUniversitySchool of Law in Delaware and has worked in the legal publishing business for approximately 14 years. She also teaches courses in Medieval History and on legal issues.

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Publications : Bar Bulletin: January 2010

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