Academic journal article Southern Law Journal

Amendments to the Americans with Disabilities Act: How Will It Change Judicial Consideration of Employees' Claims of Discrimination?

Academic journal article Southern Law Journal

Amendments to the Americans with Disabilities Act: How Will It Change Judicial Consideration of Employees' Claims of Discrimination?

Article excerpt


When the Americans with Disabilities Act (ADA) was passed in 1990, it was heralded as landmark legislation for persons with disabilities. In signing the bill, then President George H.W. Bush remarked that the Act "signals the end to the unjustified segregation and exclusion of persons with disabilities for the mainstream of American life."* 1 The general provisions of the initial Act noted that the law will affect "some 43,000,000 Americans" with one or more physical or mental impairments, a number which is likely to increase as the population ages.2 According to Committee reports, the ADA was intended to address a "compelling need" for a "clear and comprehensive national mandate" to prevent discrimination against the disabled.3

Despite initial optimism surrounding passage of the law, it was not long after that public sentiment, fueled by media reports that the Act was producing inappropriate windfalls for disability plaintiffs and their lawyers, turned against the legislation.4 In addition, the courts' narrow interpretation of who was disabled under the Act precluded many people who appeared to be covered from pressing their claims of discrimination. According to one study, in the first seven years after its passage, defendant employers won 94% of cases at the trial court level and 84% of cases appealed by losing plaintiffs.5 As a result, Congress amended the ADA, effective January 1, 2009, to broaden the definition of disability. However, whether these amendments will effectively enhance litigants' chances of success in the courts remains questionable.6 This paper first reviews the courts' decisions regarding the scope of the ADA prior to the amendments, followed by a discussion of the changes made by the 2008 amendments (ADAAA). It will then focus on cases decided after the amendments regarding the definitions of disability, ability to perform the essential functions of the job, and reasonable accommodation. It will conclude by a discussion of implications for scholars and practitioners.

II. Interpretation of the ADA before the Amendments

As originally worded, Title I of the ADA prohibited employers from discriminating "against a qualified individual with a disability because of the disability of such individual . . . ."7 Title II prohibits discrimination with respect to services, programs or activities of a public entity such as a school, hospital or prison. Title III protects individuals from discrimination at places of public accommodation, such as restaurants, hotels, or entertainment centers. To establish a prima facie case under Title I of the ADA, the plaintiff must establish that (1) (s)he is disabled within the meaning of the ADA; (2) (s)he is qualified (with or without a reasonable accommodation) to perform the essential functions of the position; and (3) the employer took an adverse employment action because of his or her disability. Unlike most other civil rights statues, the ADA required plaintiffs to demonstrate that they are in the protected class in order to proceed with their claims.8 Thus, it is this first requirement that has engendered the greatest amount of controversy because it in effect acts as a gatekeeper: if the plaintiff cannot establish that he or she is disabled, the court will dismiss the case without a chance for offering evidence on the second and third issues. In order to establish disability, the ADA further provides that the plaintiff must show that he or she (1) has "a physical or mental impairment that substantially limits one or more major life activities""; or (2) has "a record of such an impairment;"" or (3) is "regarded as having such an impairment."9 This so called three-prong test was intended to broaden the definition of disability; however, the courts' narrow interpretation of these definitions has limited plaintiffs' recovery under the Act, especially with respect to the first classification.

The determination of whether a plaintiff is disabled must be made on a case-by-case basis. …

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