ADA Amendments Act of 2008 - Significant Changes

Significant Changes

The ADAAA explicitly overturns the controversial Supreme Court decisions in Sutton and Toyota, rejecting the high standards imposed on claimants by the Court in those cases, and reiterates that Congress intends the scope of the ADA to be broad and inclusive. The ADAAA retains the ADA’s definition of disability as a physical or mental impairment that substantially limits one or more life activities; a record of such impairment; or being regarded as having such impairment. However, it clarifies and expands the definition’s meaning and application in the following ways:

First, the ADAAA deletes two findings in the ADA that led the Supreme Court to restrict the meaning and application of the definition of disability. These findings were that “some 43,000,000 Americans have one or more physical or mental disabilities” and that “individuals with disabilities are a discrete and insular minority.” The Court had treated these findings as limiting how other provisions of the ADA should be construed.

Second, the law provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” It retains the terms “substantially limits” and "major life activities" from the original ADA definition of "disability," but makes clear that Congress intended the terms to impose less- demanding standards than those enunciated by the Supreme Court in the Toyota case. It also states that the EEOC's regulatory definition of "substantially limits" was overly strict.

Third, the law prohibits consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining whether an impairment substantially limits a major life activity. The related text of the ADAAA explicitly rejects the Supreme Court’s holdings in Sutton and its companion cases that mitigating measures must be considered in determining whether an impairment constitutes a disability under the law. The ADAAA also provides that impairments that are episodic or in remission are to be assessed in their active state.

Fourth, the law provides additional direction on the “major life activities” that must be substantially limited in order for an impairment to be a disability: the Act lists specific examples of major life activities, rather than leaving that phrase open to interpretation, as the ADA of 1990 did. The non-exhaustive list of major life activities in § 4(4)(a) of the amended ADA includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The ADAAA also lists major bodily functions, including, but not limited to, functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Fifth, the law removes from the “regarded as” prong of the disability definition (the third prong of the definition) the requirement that an individual demonstrate that the impairment that he or she has, or is perceived to have, limits a major life activity in a way that is perceived to be substantial. Under the ADAAA, therefore, an individual can establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment that is not transitory and minor. The law also explicitly states that although individuals who fall solely under the “regarded as” prong of the definition of disability are protected from discrimination, entities covered by the ADA are not required to provide accommodations, or to modify policies and procedures, for such persons.

Sixth, the law clarifies that the authority granted to three specific Federal agencies to issue regulations interpreting the ADA includes the authority to issue regulations implementing the definitions contained in Sections 3 and 4 of that Act.

Finally, the ADAAA makes conforming amendments Section 7 of the Rehabilitation Act of 1973, and to Title I of the ADA itself. To conform the employment-related provisions of the ADA with parallel provisions of Title VII of the Civil Rights Act of 1964, the latter amendments change the language of Title I to provide that no covered entity shall discriminate against a qualified individual “on the basis of disability.”

To summarize the ADAAA timeline: the Act was introduced on July 31, 2008; passed the Senate on September 11, 2008; passed the House on September 17, 2008; was signed by the President on September 25, 2008; and took effect on January 1, 2009.

The United States Court of Appeals for the District of Columbia Circuit held on July 21, 2009, that the ADAAA does not apply retroactively.