The ADA Amendments Act of 2008

Perhaps it was lost in the news about the Wall Street bailout but there has been little noted about the September 25, 2008, passage of substantial revisions to the Americans with Disabilities Act.

The "ADA Amendments Act of 2008," which takes effect on January 1, 2009, has as its primary purpose the goal of legislatively overturning almost every Supreme Court decision that had interpreted the ADA as it was originally enacted. Congress and the Courts like to play a game - Congress writes an ambiguous statute, a court interprets the ambiguity in a way Congress decides it doesn't like, and then Congress rewrites the ambiguous statute by blaming the court's interpretation of the ambiguous provisions. (If the Civil Rights Amendments Act of 1991 is any indicator, the "corrective" amendments usually create even more ambiguities.)

Third branch politics aside, what changes are in store for Tennessee employers?

The primary focus of the amendment was to change the definition of disability. As most know, the ADA defines disability in three ways. While Congress did not change the first two definitions of "disability," it codified additional terms so it could significantly broaden who has an impairment that substantially limits a major life activity.

First, with limited exceptions, Congress decreed that "mitigating measures" are not to be considered in the disability determination. That is, medications, other medical devices, or behavioral modifications are not to be considered in determining whether an impairment substantially limits a major life activity. The same is true of impairments that are episodic or in remission, so long as the limitations would be substantially limiting when active. These changes are designed to legislatively overrule Sutton v. United Airlines Inc., and other cases which had held mitigating measures should be considered. The lone exception is for "ordinary eyeglasses or contact lenses."

Second, Congress codified the EEOC's list of illustrative "major life activities," adding several others, including reading, concentrating, thinking and communicating." Working, which is in the EEOC regulation, was also added as was a separation category for "major bodily functions" such as the immune systems and the "reproductive functions."

Third, Congress said that the phrase "substantially limits" is not to be interpreted as held in Toyota Motor Manuf. v. Williams, that the phrase means the impairment must "prevent or severely restrict" the major life activity. Congress did not say what degree of substantial limitation" is used, specifying that the EEOC should revise its regulations to meet Congress' intent.

What is not addressed in this legislation is the statement in Sutton (relying on the EEOC regulations) that the major life activity of "working" is to be considered a "residual life activity, considered, as a last resort, only 'if an individual is not substantially limited with respect to any other major life activity.'" In fact, because Congress gave the EEOC the right to define what is a "disability" its definition of "working" as a major life activity, with the House report stating Congress did not mean to change the EEOC’s regulation as it applies to “working” as a major life activity. Thus, the requirement that the court must examine a broad range of jobs or a class of jobs rather than a solitary job will have even greater legal force.

Nor did Congress overrule the holding in Williams that in determining whether someone is substantially limited in manual tasks, a court must look at all the manual tasks, not just those used on the job.

Congress also amended the third definition of disability, which provides that an individual is disabled if they are regarded as having a substantially limiting impairment. This post is long enough, however, so I will address this change, its ambiguous language, its practical effect and any remaining changes in my next post.