ADA Amendments Act Passed By House and Senate

  • September 19, 2008

In a sweeping display of bipartisan support, the Senate and the House of Representatives have passed the ADA Amendments Act of 2008 (“ADAAA”). The Senate approved the bill (S. 3406) by unanimous consent on September 11th, and the House, which passed a similar measure (H.R. 3195) by a vote of 402-17 in June 2008, approved the Senate’s version of the bill less than a week later. President George W. Bush is expected to sign the ADAAA into law within the next few weeks. Once signed by the President, the legislation is set to take effect on January 1, 2009.

The Americans with Disabilities Act (“ADA”) prohibits discrimination based on a disability in employment, public accommodations, and other areas. The ADAAA expands the protections provided by the ADA by effectively overturning Supreme Court cases that have narrowly construed who has a “disability” under the ADA. Under these cases physical and mental impairments do not rise to the level of an ADA “disability” if the impairment is controlled with medication, assistive devices, like hearing aids, or do not prevent or significantly restrict an individual from performing a major life activity, such as walking, sleeping and working.

Explicitly rejecting these Supreme Court cases, the ADAAA states: “[I]t is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Therefore, the ADAAA expressly provides that the “definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]” The legislation directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment.

The ADAAA also lowers the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, an individual claiming she or he was “regarded as” having a disability had to prove either the employer mistakenly regarded the individual as having an impairment that substantially limited a major life activity or the employer mistakenly believed that an actual impairment substantially limited the individual. The ADAAA would hold an employer liable under a “regarded as” theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. This significantly eases the evidentiary proof to establish a “regarded as” claim under the ADA.

There is some good news for employers, however. The ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. The ADAAA also clarifies that employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts of appeals were previously split. In addition, the ADAAA may have a limited impact in states where the state or local law already defines “disability” more broadly than the existing ADA.

The ADAAA will undoubtedly expand the number of individuals who are considered “disabled” and likely will make defending ADA claims more difficult for employers. Jackson Lewis will keep you informed of ongoing developments as the ADAAA makes its way to President Bush’s desk.

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