Academic journal article Defense Counsel Journal

The ADA Amendments Act of 2008: Practical Implications for Employers in 2012 and Beyond

Academic journal article Defense Counsel Journal

The ADA Amendments Act of 2008: Practical Implications for Employers in 2012 and Beyond

Article excerpt

I. Background

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 ("ADA Amendments").l Proponents of the ADA Amendments argued the legislation was needed to breathe new life into the Americans with Disabilities Act ("ADA") following more than a decade of federal court decisions that significantly narrowed the scope of what qualified as a "disability" under the law. A narrow definition of "disability" frequently led judges to dismiss ADA cases against employers before trial. In fact, one study indicates that employers prevailed in at least 93 percent of all ADA employment discrimination cases each year from 1998 through 2007. (2) In some years, such as 2003, employers' win rate was as high as 98 percent. (3) Most of these cases were dismissed before trial on the grounds that the plaintiff did not meet the definition of "disabled" under the ADA. (4) The ADA Amendments aim to reverse this trend by lowering the high bar set by courts for an employee to prove that he or she is disabled, and, therefore, entitled to invoke the protections of the ADA.

II. Re-Defining "Disability": From a "Demanding Standard" (5) to "Broad Coverage" (6)

A. Overview

The ADA prohibits employers from discriminating against qualified individuals with a disability and requires employers to make reasonable accommodation for disabled employees if the accommodation can be made without undue hardship to the employer. (7) An employee is "disabled" under the ADA if he or she: (1) has an impairment that substantially limits one or more major life activities; or (2) has a record of having such an impairment; or (3) is regarded as having such an impairment. (8) The ADA Amendments seek to significantly expand the class of individuals who may bring claims under the ADA by (1) changing the definition of what is a "major life activity"; (2) changing the way courts interpret the term "substantially limits"; and (3) requiring courts to ignore the ameliorative effects of any mitigating measures an employee uses to cope with his or her impairment when determining whether the employee has a "disability." (9)

Furthermore, the ADAAA and its final regulations emphasize that employees should not focus on whether the employee has a qualifying disability. Instead, employers should focus on meeting their obligations to reasonably accommodate an employee and engage in the interactive process. The final regulations specifically provide that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. (10) The interpretive guidance to the final regulations emphasizes this by noting that the focus of attention in cases under the ADA should be whether entities have complied with their obligations, not whether the individual meets the definition of disability. (11)

B. Additions to the list of "major life activities"

The ADA Amendments significantly broaden the definition of "disability" by expanding the list of "major life activities." The original ADA did not specifically define "a major life activity" under the Act. Before the ADA Amendments, the Equal Employment Opportunity Commission's (EEOC's) interpretive regulations contained a brief list of examples of "major life activities" that included "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." (12) While the regulations did not limit the definition of "major life activities" to those enumerated, many courts refused to consider limitations on activities dissimilar to those specifically listed in determining whether an individual had a covered "disability."

Pursuant to the amendments, a more comprehensive list of "major life activities" is now expressly included in the statutory language of the ADA. …

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