Q. One of our security employees uses a hearing aid. He could not pass the unaided hearing requirements of his job. As a result, we let him go. His layoff occurred in 2007, when he first brought a claim for an alleged violation of the ADA. He claims that with the subsequent adoption of the ADA Amendments Act of 2008 (ADAAA), an employer is not allowed to consider mitigating measures in determining whether an employee has a disability. Can the ADAAA be retroactively applied so he is deemed to have a disability under the ADA?
A. No. Federal appellate court decisions subsequent to the adoption of the ADAAA have held that these amendments do not have retroactive application. Thus, the original definition of “disability” applies under the U.S. Supreme Court’s interpretations in Sutton v. United Air Lines, Inc. and Murphy v. United Parcel Services, Inc. The Supreme Court held that courts must take into account the benefit of any impairment-mitigating devices the plaintiff uses in determining whether he is disabled within the meaning of the ADA.
Therefore, the employee’s use of a hearing aid to mitigate his hearing loss will be a factor in determining whether he has “a physical or mental impairment that substantially limits one or more major life activities of such individual.”