What Should You Know about the ADAAA?
In 1990, Congress enacted the Americans with Disabilities Act (ADA) to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities. Upon enactment of the ADA, the United States Supreme Court became constitutionally obligated to interpret and enforce the law in a manner consistent with Congress’s directives. But as a result of several prominent Supreme Court decisions in ADA cases, legislators in Congress have become displeased by the manner in which the law has been interpreted. In response, Congress has passed the ADA Amendments Act of 2008 (ADAAA), effectively expanding the scope of the original law.
Congress found that the Court has “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” Moreover, Congress found that the definitions of two seminal legal terms used by the Equal Employment Opportunity Commission (EEOC) were inconsistent with Congressional intent because they expressed too high a standard for individuals seeking protection under the law. Thus, Congress drafted the ADAAA with the goal of correcting the judicial contraction of the ADA’s scope, as well as the EEOC’s expansion of several of the ADA’s minimum applicability thresholds.
Although the ADA prohibits discrimination on the basis of disability in several different areas, the ADAAA will likely have its greatest impact in the employment context, requiring employers with 15 or more employees covered by the ADA to adjust their policies and procedures to comply with the ADAAA. Some of the new law’s significant provisions are described below.
Effect on Construction and Design Professionals
Congressional intent is clear from the Amendments Act’s findings and purposes. 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 new rules will affect construction of new facilities and alterations of existing buildings at places of public accommodation, including, but not limited to, retail stores, restaurants, recreation and entertainment facilities, sports facilities, hotels, motels, resorts, healthcare facilities, educational institutions, and service offices. The revised ADA Standards also apply to new construction and alterations of commercial facilities (i.e., facilities whose operations affect interstate commerce) and to state and local government facilities.
Many questions remain unanswered. 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?
Scope of “Disability” Broadened
Determining an individual’s entitlement to protection under the ADA hinges on whether or not that individual suffers from a “disability,” as the term is defined by the ADA. Although other terms and phrases found within the definition of disability have been changed by the ADAAA, the definition of “disability” itself was not. However, what the ADAAA does do is state that “the definition of disability…shall be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA].” This provision was included in the ADAAA to reinstate the broad scope of protection afforded by the ADA that, in the view of the Congress, the Supreme Court has improperly narrowed.
List of “Major Life Activities” Expanded
To qualify as a disability under the ADA, a physical or mental impairment must substantially limit “one or more major life activities” of an individual. In one Supreme Court decision legislatively overruled by the Congress’s enactment of the ADAAA, the Court had held that the word “major” in this context “need[s] to be interpreted strictly to create a demanding standard for qualifying as disabled.” In the ADAAA, however, Congress has explicitly rejected this standard as contrary to the broad scope of protection that is available under the ADA.
Loosening of “Substantially Limits” Requirement
While under the ADA a physical or mental impairment must “substantially limit” one or more major life activities, the ADAAA includes several provisions that loosen this requirement. First, the ADAAA rejects the Supreme Court’s requirement that the word “substantially” be interpreted strictly to create a demanding standard for individuals seeking to qualify as disabled. Furthermore, the ADAAA rejects the Supreme Court’s rule that the word “substantially” be read to mean “prevents or severely restricts.” In this regard, the ADAAA significantly reduces the degree of impairment required for protection under the ADA.
Second, the ADAAA provides that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability. Third, the ADAAA provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.
Finally, the ADAAA provides 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 such as medication, prosthetics, hearing aids, mobility devices, and oxygen therapy equipment. This provision in the new law expressly overrules a case in which the Supreme Court held that determining whether an impairment substantially limits a major life activity requires reference to the ameliorative effects of mitigating measures. However, there is an important exception to this rule—one that states that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
Through the ADAAA, Congress has conveyed its intent that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and that the question of whether an individual’s impairment qualifies as a disability under the ADA should not demand extensive analysis. There is no denying that the ADAAA has expanded the number of individuals who may be entitled to protection under the ADA. At the very least, the ADAAA has made it easier for employees to state a claim under the ADA and, at the same time, the ADAAA has seemed to make it more difficult for employers to defend against such claims. At this time, the ultimate impact of the ADAAA is difficult to determine. Adding to the uncertainty is the fact that the EEOC has yet to promulgate any regulations interpreting the ADAAA’s provisions. Moreover, until the ADAAA is tested in court, it is virtually impossible to predict the precise standard to which employers will be held in the future.
