New Law Expected To Increase Litigation For Employers

President George W. Bush has signed into law a measure (S. 3406) that significantly amends the Americans with Disabilities Act (ADA). Ironically, the original ADA was signed in 1991 by his father, former President George H.W. Bush. The ADA Amendments Act of 2008, which was negotiated by business groups and the disability and civil rights communities (together with its principal congressional sponsors), passed the Senate by unanimous consent on September 11, and it was approved by voice vote in the House on September 17.

While the bill reverses several U.S. Supreme Court rulings favorable to business concerning the definition of “disability” for purposes of ADA coverage (and therefore is likely to lead to additional litigation), the negotiated bill is an improvement over the original ADA Restoration Act. In effect, the original bill would have elevated virtually any impairment into a legally actionable “disability” and would have made it much easier to sue employers. The ADA Amendments Act is far from perfect, but it may be the best “deal” that employer groups could negotiate in a hostile environment.

Details Of The New Law

Under the ADA Amendments Act, which becomes effective on January 1, 2009, courts are to “broadly” construe the definition of “disability” in favor of coverage of individuals under the ADA. Sponsors of the new law argued that the courts had gone beyond the ADA’s original intent in making it difficult for individuals to sue employers for disability discrimination.

The new law also provides that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a “disability.” Also, an impairment that is episodic or in remission will still be considered a “disability” under the new law if it would substantially limit a major life activity when active.

No “Mitigating Factors” Defense

Significantly, the determination as to whether an impairment substantially limits a major life activity must be determined without regard to any “mitigating factors,” such as prescriptive medicines or equipment that would ameliorate the effects of the disability (except for ordinary eyeglasses or contact lenses).

In other words, the ADA Amendments Act eliminates “mitigating factors” from the definition of a disability, which was the basis for the Supreme Court’s 1999 rulings in Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson’s Inc. v. Kirkingburg.

In those cases, the Court held that “mitigating measures” that would assist an individual in controlling an impairment must be a factor in determining whether an individual is “disabled” within the meaning of the ADA. The ADA Amendments Act specifically overturns those three decisions, which Congress found were contrary to the original intent of the ADA.

For example, the new law states that Sutton incorrectly held that for an individual to be classified as “disabled” under the ADA he or she must have “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives,” and that “disability” is to be determined with reference to the “ameliorative effects of mitigating measures.”

The ADA Amendments Act excludes “mitigating factors” as follows: “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as –

  • Medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
  • Use of assistive technology;
  • Reasonable accommodations or auxiliary aids or services; or
  • Learned behavioral or adaptive neurological modifications.”

These changes are designed to broaden the application of the ADA. According to proponents of the bill, the U.S. Supreme Court decisions have narrowed the definition of disability so much that people with serious conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy have been determined to not meet the definition of “disability” under the ADA. The result: in 2004, plaintiffs lost 97% of ADA employment discrimination claims that went to trial, often due to the interpretation of the definition of disability.

Changes To “Substantially Limits” A Major Life Activity

The ADA Amendments Act also overturns the Supreme Court’s decision in Toyota Motor Mfg. Co. of Kentucky v. Williams (2002), which applied a tough standard in determining whether an individual with an impairment is “substantially limited” in a major life activity and, therefore, “disabled” under the ADA. While the new law retains the “substantially limits” phrase, it directs the Equal Employment Opportunity Commission (EEOC) to promulgate less restrictive rules that would provide broader coverage.

For example, the ADA Amendments Act requires that the new EEOC regulations define the term “substantially limits” as whether an individual is “significantly restricted” in a major life activity.

The new law defines “major life activities” as: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The term also would cover “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

Changes To “Regarded As Disabled”

Importantly for employers, the ADA Amendments Act also clarifies the so-called “third prong” of the ADA’s definition of disability – where an individual is “regarded as” disabled by the employer. The ADA prohibits discrimination in employment with regard to whether an individual: (1) is disabled; (2) has a record of disability; or (3) is regarded as disabled.

Under the ADA Amendments Act, “[a]n individual meets the requirement of `being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” This does not apply to impairments that are transitory and minor. The new law defines a “transitory impairment” as “an impairment with an actual or expected duration of 6 months or less.”

Importantly for employers, the ADA Amendments Act provides that reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment. Accommodations need not be provided to an individual who is only “regarded as” having an impairment.


According to Harold P. Coxson, Jr., a shareholder in Ogletree Deakins’ Washington, D.C. office and a principal with Ogletree Governmental Affairs: “Certainly, the ADA Amendments Act is less favorable for employers than the current ADA as interpreted by the Supreme Court. Clearly, it will lead to increased litigation under the broader definitions of disabled individuals. It is, however, much less of a problem for employers than the original ADA Restoration Act. Nonetheless, employers should consult legal counsel to determine the effects of these legislative changes on current policies and practices.”

Note: This article was published in the November/December 2008 issue of The Employment Law Authority.

Browse More Insights

Practice Group

Employment Law

Ogletree Deakins’ employment lawyers are experienced in all aspects of employment law, from day-to-day advice to complex employment litigation.

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now