The American with Disabilities Act Amendments in Effect

January 1, 2009

The Americans with Disabilities Amendments Act of 2008 (ADAA) went into effect on January 1, 2009.  The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of Equal Employment Opportunity Commission’s (EEOC) regulations under the Americans with Disabilities Act of 1990 (ADA).  The critical inquiry under the amended law is no longer whether the individual has a disability, which had been a primary battleground of past court decisions. Rather,  the focus is directed to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees.
 
When Congress passed the ADA, it expected the definition of disability would be interpreted consistently with how courts had applied the definition of handicap under the Rehabilitation Act of 1973.  In the last decade, that expectation has not been fulfilled. The decisions of the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), narrowed the broad scope of protection intended to be afforded by the ADA, eliminating protection for many individuals.

Mitigating Measures

The ADAA rejects the requirement articulated by the Supreme Court in Sutton v. United Airlines, Inc., and its companion cases that the decision whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures. To correct this, the ADAA states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability. 

“Substantially Limits” and “Major Life Activities”

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court reasoned that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled”; and that to be substantially limited in performing a major life activity under the ADA “an individual 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.”
 
Congress has directed the EEOC to revise the portion of its regulations defining the term "substantially limits" and to provide a new definition to indicate the departure from the strict and demanding standard applied by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and numerous lower courts.  The ADAA defines the term “substantially limits” to mean materially restricts.
 
Also in response to Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Act expands the definition of "major life activities" by including two non-exhaustive lists.  The first list includes many activities that the EEOC has previously, recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating).  The second list includes major bodily functions (e.g., functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).

“Regarded As”

The ADAA also provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation. An 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 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.  The protections of the ADAA do not apply to impairments that are transitory and minor, defined as those with an actual or expected duration of six months or less.

“What Impact?”

What impact will the ADAA have on the workplace?  Some employers may not see much change. In states such as California, New Jersey and New York, state or local laws are even more expansive than the amended ADA, and employers in these states may already be used to the broader disability coverage under state and local laws.
 
Remember that if the disability is obvious, a duty to accommodate might exist even if the employee has not asked for an accommodation.
 
In one recent case, Brady v. Wal-Mart Stores Inc., 531 F.3d 127 (2d Cir. 2008), the Second Circuit Court affirmed an award of $900,000 to a former pharmacy assistant with cerebral palsy whose impairment obviously affected his gait and speech, but who never requested an accommodation.  This is a very important Title I case because it describes how the ADA does not require an employee to request the reasonable accommodation but imposes the obligation on the employer to engage in the interactive process and provide the reasonable accommodations when it should have reasonably known that the employee was disabled.  The EEOC has long stated that the ADA does not require the employee to request the reasonable accommodation and that an employer should engage in the interactive process once it is aware an accommodation has been requested or is needed, (See http://www.eeoc.gov/policy/docs/accommodation.html#requesting).  This decision clarifies the obligation of employers to engage in the interactive process and how it can serve as a basis for a violation of the ADA.
 
Another important decision is Roberts v. Royal Atlantic Corporation, 542 F.3d 363 (2d Cir. 2008), which provides a very thorough analysis and explanation of the Title III accessibility requirements for places of public accommodation that is often not undertaken in our Circuit, as is apparent by the lack of case citations throughout the decision. The discussion of when a facility is “altered,” including the analysis of 504 case law and the Department of Justice (DOJ) implementing regulations, is well reasoned.  Similarly, discussions of the terms “maximum extent feasible” and when the removal of barriers is “readily achievable” provides some direction on how to the accessibility provisions Title III should be analyzed.
 
Another important Title III case this year was Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir. 2008).  In Camarillo, the Court vacated the NDNY decision and determined that the plaintiff, a blind patron of a fast food restaurant, had standing to pursue her ADA claims.  The Court found Title III requires places of public accommodation to ensure auxiliary aids and services are provided to ensure individuals with disabilities have access to all services.  The restaurant here failed to ensure “effective communication” of its menu items.  In addition the Court determined places of public accommodation must have appropriate policies and procedures in place and ensure staff are properly trained on how to provide these services.
 
Thanks to Empire Justice Center’s Michael Mulé for his analysis of the amendments to the ADA, and the relevant Second Circuit case law.