President Bush is expected to sign what is now called the ADA Amendments Act of 2008 (“ADAAA”). Formerly known as the ADA Restoration Act, Congress passed the ADAAA earlier this month. The ADAAA is intended to revise aspects of the original ADA, which President George H.W. Bush approved in 1990.

If approved as expected, the amendments will take effect on January 1, 2009. The changes will expand the ADA’s current scope, potentially to a significant degree. By design, these changes will abrogate hundreds of judicial opinions, regulations, and other enforcement guidance. Employers and their lawyers will have to quickly review and revise their policies, procedures, and litigation strategies.

Background

Title I of the Americans with Disabilities Act of 1990 prohibits employment discrimination. The statute is different from other anti-discrimination laws. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. With the possible exception of religion, everyone is a member of each protected group. The ADA’s protections, however, apply only to “qualified individuals with disabilities.” Indeed, much of the litigation arising under the ADA focuses on who is covered by the law.

The ADA also differs from other anti-discrimination laws because it requires unequal treatment of individuals with disabilities to ensure equality of opportunity. The “unequal treatment” is called “reasonable accommodation” and it is an adjustment to working conditions that enable individuals with disabilities to perform essential job functions or enjoy the privileges of employment on the same terms as those without disabilities.

The ADAAA is targeted at the definition of “disability” and does not focus on “reasonable accommodation.” The U.S. Supreme Court in 1999 issued a trilogy of cases interpreting the ADA, including Sutton v. United Airlines, 527 U.S. 471 (1999). The Sutton trilogy in part held that whether an individual has a “disability” depends on whether “mitigating measures” (such as eyeglasses in Sutton’s case), medication, and the like, ameliorated the individual’s impairment. In 2002, the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, interpreted the definition of “disability” to exclude persons whose impairments did not significantly restrict their major life activities.

Changes to the ADA’s Stated Purpose

Section 2(a)(1) of the original ADA provides: “some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older.” The ADAAA deletes this provision. Section 2(a)(1) will now read: “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination.” Thus, the statute no longer will acknowledge the number of individuals with disabilities is a fraction of the entire population.

Re-Defining the “Substantial Limitation”

The ADA defines “disability” “as a physical or mental impairment that substantially limits one or more major life activities of such individual.” It also includes those individuals who have a record of, or who are regarded as having, such an impairment.

The ADAAA’s definition of “substantially limits” is intended to overturn court decisions interpreting the term, as well as the Equal Employment Opportunity Commission’s (“EEOC”) construction. Congress has now provided the following gloss: an impairment’s “substantial limitation” on enjoyment of major life activities is determined by examining the impairment without regard to whether “mitigating measures,” such as medication, ameliorates the impairment. The purpose of this amendment in part is protect those individuals with disabilities who may not need “accommodation,” but who nevertheless are subjected to discrimination because of an impairment.

For example, an employer might discriminate against a diabetic by refusing to hire him, even though medication usually allows the diabetic to participate in all major life activities. However, even under the new law, “the ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.” That means that an individual’s merely wearing glasses will not automatically result in a finding that an individual has a disability.

The law also makes clear that an impairment’s “substantial limitation” need only limit one major life activity. Moreover, an impairment that manifests itself sporadically or episodically (or one that is in remission) will still constitute a “disability” if it is “substantially limiting” in its active state. For example, an individual with epilepsy may go years without a seizure. But the impairment will be considered a disability if it substantially limits major life activities when the seizures actually occur.

Expansion of “Major Life Activities”

To constitute a covered “disability,” impairments must substantially limit one or more “major life activities.” The ADAAA specifically defines the term “major life activities” as including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” It 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.”

Other Issues

While applicants and employees who wear ordinary glasses or contact lenses may not have “disabilities,” the ADAAA addresses when poor uncorrected vision would result in disqualification for a job. The new law prohibits “qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.” Thus, vision tests will be evaluated under the strict “business necessity” standard applicable to medical examinations.

The ADAAA also clarifies that employers do not have to provide “reasonable accommodation” to employees incorrectly “regarded” as having impairments. The courts have issued conflicting rulings on this issue.

Finally, Congress calls upon the EEOC to amend its regulations on the definition of “disability,” particularly with its interpretation of “substantial limitation” and “major life activities.” The EEOC has issued copious regulations, Fact Sheets, Enforcement Guidance, a Technical Assistance Manual, and other document to help employers, lawyers, and the public understand the ADA. This process obviously will take time to revise.

The ADAAA’s Effect on California Employers

The California Legislature amended the Fair Employment and Housing Act to reject the Sutton trilogy in 2000. Therefore, the ADAAA will have little influence on California law. In fact, California employers will notice little difference in the way they administer disability discrimination laws, which remain tougher than the ADAAA.

Conclusion

Come January 1, 2009, unless President Bush vetoes the ADAAA and Congress fails to override it, nearly everything you thought you knew about the ADA’s definition of “disability” likely will be obsolete. It will be critical to revise protocols and policies for evaluating employees’ requests for accommodation, how to respond to discrimination claims, and questionnaires submitted to medical providers. No doubt numerous seminars will be offered to assist employers with these changes. It is important to ensure the facilitators of those seminars are well experienced in this dynamic and often confusing area of the law.