The ADA Amendments Act of 2008

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 ("ADAAA"). The 2008 Amendments are intended to broaden the scope of individuals entitled to the protections of the Americans with Disabilities Act ("ADA"). The ADAAA becomes effective on January 1, 2009.

The ADAAA was enacted as a result of Congress's dissatisfaction with the Supreme Court's decisions in ADA cases, which "narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect." Congress also determined that the Equal Employment Opportunity Commission's ("EEOC") definitions of critical legal terms were inconsistent with the original legislative intent because they created too great of a standard for individuals seeking protection pursuant to the ADA. Some significant provisions of the ADAAA are as follows.

Scope of "Disability" Broadened
Determining whether an individual is entitled to protection pursuant to the ADA turns on whether or not that individual suffers from a "disability," as the term is defined by the ADA. Although the ADAAA does not alter the definition of the term "disability," it does provide that "the definition of disability shall be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA]." Congress included this provision in the ADAAA to restore the broad scope of protection afforded by the ADA that, in its opinion, the Supreme Court had improperly narrowed.

What Is a Major Life Activity?
To qualify as a disability under the ADA, a physical or mental impairment must substantially limit "one or more major life activities" of an individual. In one Supreme Court decision that has been negated by the ADAAA, the Court had held that the word "major" in this context "need[s] to be interpreted strictly to create a demanding standard for qualifying as disabled." In the ADAAA, however, Congress has explicitly rejected this standard as contrary to the broad scope of protection that the ADA was intended to provide.

Moreover, the ADAAA expands the list of "major life activities," which includes, but is not limited to:

• caring for oneself;
• performing manual tasks;
• everyday activities such as breathing, seeing, hearing, speaking, eating, sleeping, and walking;
• standing, lifting, and bending;
• learning, reading, concentrating, thinking, and communicating; and
• working

The ADAAA also introduces a non-exclusive list of major bodily functions, the operation of which constitute major life activities. The list includes, but is not limited to:

• functions of the immune system;
• normal cell growth; and
• functions involving the digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.

"Substantially Limits" Requirement Relaxed
While the ADA provides that a physical or mental impairment must "substantially limit" one or more major life activities, the ADAAA includes several provisions that loosen this requirement.

The ADAAA rejects the Supreme Court's requirement that the word "substantially" be interpreted strictly to create a demanding standard for individuals seeking to qualify as disabled. The ADAAA further rejects the Supreme Court's rule that the word "substantially" be read to mean "prevents or severely restricts." In addition, the ADAAA provides that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability. The ADAAA also provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.

Finally, the ADAAA provides that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the impact of mitigating measures such as medication, prosthetics, hearing aids, mobility devices, and oxygen therapy equipment. There is, however, an important exception to this rule that provides that the positive impact of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

There Is No Obligation To Accommodate A "Regarded As" Individual
Resolving an issue that has divided the courts, the ADAAA provides that an employer is not obligated to provide a reasonable accommodation to an individual who is "regarded as" being disabled. This provision is understandable given that an individual who claims to be "regarded as" being disabled generally argues that he or she is not actually disabled, but rather is perceived to be disabled by the employer. Thus, such an individual would not be entitled to a reasonable accommodation pursuant to the ADA.

An Individual Cannot Make A Claim OF Reverse Discrimination
The ADAAA provides that individuals cannot bring claims under the ADA alleging that they were treated worse because they do not have a disability. For example, an individual cannot allege that an employer has acted unlawfully because it provides an accommodation to a disabled employee but not to others.

Shift of Focus in ADA Cases
Through the ADAAA, Congress has conveyed its intent that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations, not whether an individual's impairment qualifies as a disability under the ADA. It was clear to Congress that the latter issue had too often been subjected to extensive analysis, while the former had too often been regarded as an afterthought. By reducing the amount of attention that is to be focused on a plaintiff's status as disabled, it is likely that more ADA claims will make it to trial rather than being disposed of by courts as a matter of law.