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The New ADA – A Tabula Rasa? By Brian A. Vandiver Published in the DRI Newsletter, The Voice, July 18, 2008 in Volume 7 Issue 28 Introduction. Since 1990, entities covered by the Americans with Disabilities Act (ADA), including employers, have enjoyed tremendous success defending actions under the ADA. This is largely due to decisions by the federal courts, including the United States Supreme Court, which have narrowly interpreted key provisions of the ADA, such as disability, substantially limited, major life activities, and the like. It appears, however, that Congress will soon cast aside that favorable precedent with the ADA Amendments Act of 2008 (the “Amendments Act”) and create a tabula rasa upon which the lower courts must answer new questions. Legislative Status. The Amendments Act is a compromise bill drafted to clarify and replace elements of its predecessor, the ADA Restoration Act of 2007 (“Restoration Act”), which was first introduced in July 2007. In order to draft a more balanced bill with broader support, disability and business communities were encouraged to negotiate an acceptable compromise. Numerous business groups, such as the U.S. Chamber of Commerce and the Society for Human Resource Management (SHRM), support the compromise. The House Committees on the Judiciary and Education and Labor both reported the Amendments Act, H.R. 3195, by an overwhelming vote on June 18, 2008. On June 25, H.R. 3195 passed in the House by a 402-17 vote. Two days later, it was placed on the Senate legislative calendar, where it remains. As of this publication, there is no date set for a vote in the Senate. Given its tremendous support, it is likely that the Senate will approve the bill. President Bush has signaled his support for this bill's overall intent, suggesting it may be enacted if passed by the Senate. If passed, the legislation would take effect on January 1, 2009. A copy of it can be found here: The Amendments Act’s Findings. There are five findings. First, “in enacting the [ADA], Congress intended that the Act ‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’ and provide broad coverage.” Second, “in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers.” Third, “while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of handicap under the Rehabilitation Act of 1973, that expectation has not been fulfilled.” Fourth, “the holdings of the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and its companion cases, and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), 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.” Fifth, “as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” The Amendments Act’s Purposes. There are also five purposes. First, “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” Second, “to reject the requirement enunciated by the Supreme Court in [Sutton] and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigations measures.” Third, “to reject the Supreme Court’s reasoning in [Sutton] with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973.” Fourth, “to reject the standards enunciated by the Supreme Court in [Toyota], 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,’ and that to be substantially limited in performing a major life activity under the ADA ‘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.’” Fifth, “to provide a new definition of ‘substantially limits’ to indicate that Congress intends to depart from the strict and demanding standard applied by the Supreme Court in [Toyota] and by numerous lower courts.” A New Definition of Disability. The Amendments Act’s new definition of disability has five paragraphs. Paragraph 1 retains the familiar three-prong definition of disability – “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment (as described in paragraph 4).” Paragraph 2 provides, “the term ‘substantially limits’ means materially restricts.” Paragraph 3 provides, “major life activities include but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” Paragraph 3 further provides that “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Paragraph 4 provides, for purposes of paragraph 1(C), “[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes 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.” Paragraph 4 further provides, “Paragraph 1(C) shall not apply to impairments that are transitory and minor” and “[a] transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Paragraph 5 establishes rules of construction regarding the definition of disability. The rules of construction provide that the definition of disability “shall be construed broadly,” that “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability,” that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and that the “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures” except “ordinary eyeglasses or contact lenses.” Examples of mitigating measures are enumerated in the Amendments Act. Other Significant Issues. The Amendments Act also provides that a reasonable accommodation is not required under Title I, Title II, or Title III of the ADA “to an individual who meets the definition of disability in section 3(1) solely under subparagraph (C).” Thus, if an individual’s sole basis for a disability is a regarded as disability, the ADA will not require an accommodation. In addition, the Amendments Act would amend the ADA to mirror the structure of Title VII and other civil rights laws by changing the language from prohibiting discrimination against an individual “with a disability because of the disability” to prohibiting it “on the basis of disability.” This change reflects an overall attempt to minimize the standard used in determining whether an individual is a “person with a disability” and to refocus the analysis on whether discrimination on the basis of disability occurred. Finally, the Amendments Act grants the EEOC, the Attorney General, and the Secretary of Transportation the authority to issue regulations under the Amendments Act. This authority includes the authority to issue regulations implementing the new definition of disability. Whether the EEOC will further clarify (or further cloud) its previous regulations on the definition of disability, and how it will do so, remains to be seen. Conclusion. Congressional intent is clear from the Amendments Act’s findings and purposes. Assuming the Amendments Act becomes law, employers and other entities covered by the ADA can no longer rely on the Sutton trilogy or Toyota. Nearly two decades of federal court decisions interpreting the ADA’s definition of disability would be abrogated by statute. The litigation to fill in the gaps created by the Amendments Act would begin soon thereafter. For example, what does “materially restricts” mean? What are transitory impairments and how should the six-month duration rule apply? When is an impairment episodic or in remission? How will courts apply the major life activities of concentrating, thinking, and communicating? What other major life activities and mitigating measures were not enumerated in the Amendments Act?
If the ADA Amendments Act of 2008 becomes law, entities covered by the ADA and their counsel must be prepared to address the new ADA and its ramifications. Indeed, this blank slate would begin a new era, one where individuals could more easily establish their disabilities and one where defending ADA claims would be much more difficult and costly.
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