As we have learned, the major purpose of the bipartisan ADA Amendments Act of 2008 is to liberate the definition of “disability” from the narrow definition adopted by the courts. How does the ADAAA do this? The answer is in several ways.
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New Interpretation of Regarded As Disabled
As you probably know, the original Americans with Disabilities Act had a three prong definition of disability. Under the original statutory provisions, a disability included the following:
Under the ADA Amendments Act, the first two prongs of the definition of disability are unchanged. The specific statutory language of the third prong is not changed either, but the ADAAA contains a special rule for “regarded as” disabled situations where an employer takes a job action against an individual because of an actual or perceived impairment. In those situations, the ADAAA provides that the employer will have regarded the person as being disabled even if the employer does not perceive the physical or mental impairment as substantially limiting a major life activity. This is a major change from the interpretation of the original
ADA , which required that an employer perceive the individual’s impairment as not only limiting a major life activity, but also substantially limiting the activity.
Thus, under the original ADA, if a construction worker couldn’t life more than 25 pounds and, as a result, his employer terminated him, the employer, in most cases, would not have regarded the person as disabled. This is because being unable to life more than 25 pounds is not a substantial limitation on lifting. This type of analysis significantly reduced the number of persons who could claim protection under the regarded as disabled prong of the
ADA definition of disability.
With the ADAAA, this no longer will be the case. Any time that an employer takes a job action due to a person’s real or perceived impairment, that person will be covered under the
ADA as disabled. The only exception is where the actual or perceived impairment has an expected duration of less than six months. Hence, if an employer takes a job action because of an individual’s sprained ankle or having the flu, that person cannot claim to be “disabled” under the regarded as prong of the
ADA definition of disability (or under any other prong, for that matter).
No Consideration of Mitigating Measures
Not only does the ADAAA significantly broaden the coverage of regarded as disability claims, the statute also will have the effect of broadening the number of individuals entitled to claim that they are actually disabled as having a physical or mental impairment which substantially limits a major life activity. Although the ADAAA does not change the statutory language, it changes the analysis.
Under the Supreme Court’s 1999 decision in Sutton v. United Air Lines and its companion cases (Murphy v. UPS and Kirkinburg v. Albertson’s, Inc.), the U.S. Supreme Court held that the ameliorative effects of mitigating measures should be considered in determining whether or not an individual is substantially limited in a major life activity. For example, in Sutton, two airline pilots with severe myopia, which was correctable to 20/20 using glasses, applied to be commercial airline pilots with United Air Lines. United rejected them because of the rule that pilots flying commercial passenger jets had to have 20/20 uncorrected vision. The pilots sued United claiming that they had been discriminated against on the basis of disability, i.e., severe myopia, and that there was no safety justification for United’s rule. The Supreme Court held that the pilots could not even get to first base – they didn’t have a disability. Even though without their glasses, the pilots’ vision was in the 20/400 range, the Court held that they were not substantially limited in the major life activity of seeing because their vision should be assessed with mitigating measures, in this case eyeglasses. With glasses, of course, the pilots had 20/20 vision and, hence, could not be disabled. Additionally, the Supreme Court held that United did not regard the pilots as being disabled because prior to the ADA Amendments Act, an employer had to regard the person as being substantially limited in a major life activity and in this case United did not do so. It viewed the pilots as being unable only to fly commercial passenger airplanes for United, which did not limit any of their major life activities, including working.
Now, with the ADA Amendments Act, mitigating measures will no longer be taken into account. However, Congress (in my view, quite rightly) excluded from the definition of mitigating measures ordinary eyeglasses or contact lenses (although other types of low vision devices are deemed to be mitigating measures). As a result, the pilots in the Sutton case would not be actually “disabled” under the ADA Amendments Act just as they were not actually disabled under the original
However, that doesn’t mean that if the case were brought today, the pilots couldn’t challenge United’s decision to exclude them from being commercial airline pilots. The actions United took in rejecting their applications would, in all likelihood, render the pilots “regarded as” disabled under the ADAAA. That’s because United rejected them because of an actual impairment, severe myopia, even though that impairment (with eyeglasses) did not substantially limit the major life activity of seeing. It’s enough that the person have a non-temporary impairment.
Coverage of Episodic Impairments
Under court decisions interpreting the original ADA, a number of courts have held that persons who have been diagnosed with cancer, but whose cancer is in remission, are not covered under the ADA because they are not substantially limited in a major life activity. Where a condition is episodic or in remission, the courts have reasoned that the impairment is not substantially limiting in the sense of being permanent or long term.
This certainly appears to have been an overly restrictive interpretation of who Congress originally intended to be covered under the
ADA when it enacted the statute in 1990. As a result, the ADA Amendments Act reverses this crabbed interpretation of the statute by providing that an impairment can be a disability even if it is episodic or in remission if it would substantially limit a major life activity when active. The fact that someone’s severe impairment happens to be in remission can’t be held against them.
These are just a few of the expanded rules of construction in the ADAAA which will have the effect of opening up the doors for individuals with physical or mental impairments claiming the protections of the
ADA . Tomorrow, I’ll discuss another way in which the new legislation expands those persons who will come within the definition of “disability” by rejecting a strict interpretation of the phrase “substantially limits” and adopting a broad definition of what constitutes a “major life activity.”
Publisher's Note: To purchase Jonathan Mook's pamphlet on the "ADA Amendments Act of 2008", call LexisNexis Customer Service at 1-800-833-9844. The ISBN is 978-1-4224-7105-0. Price is $96, effective through 12/31/2009.