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Prepare for change when ADA Amendments Act takes effect next month

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in Discrimination and Harassment,Employment Law,Human Resources

By Robert C. Ludolph, Esq., and Heather A. Hoyt, Esq.

The ADA Amendments Act of 2008 (ADAAA), which goes into effect on Jan. 1, 2009, is designed to restore protections for the broad range of individuals with disabilities, as originally envisioned by Congress. The amendments, enacted earlier this fall, were also meant to reverse several U.S. Supreme Court decisions that limited the ability of individuals to qualify as disabled within the meaning of the ADA.

Reversing the Supreme Court

In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that mitigating or corrective measures that allow individuals to cope with or control their impairments must be considered in determining whether the individual is considered disabled within the meaning of the ADA. In Toyota Motors v. Williams, 534 U.S. 184 (2002), the court stated, “merely having an impairment does not make one disabled for the purposes of the ADA.”

Both decisions meant employees had to meet a demanding standard of demonstrating that their impairments severely restricted their ability to perform activities of “central importance to most people’s daily lives.” As a result, employers have won a substantial majority of ADA lawsuits filed in recent years.

That may be about to change. For the first time, Congress provided a list of per se major life activities, a number of which have been the subject of significant controversy.

The list incorporates the major life activities previously detailed in EEOC regulations: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

But the ADAAA also includes a nonexclusive list of activities such as standing, lifting, bending, eating, sleeping, reading, concentrating, thinking, communicating and the operation of any major bodily function.

What the ADAAA does

Under the ADA, an individual must prove that he or she is a qualified individual with a disability who can perform—with or without reasonable accommodation—the essential functions of the employment position the individual holds or desires. The ADAAA significantly redefines employee rights under the ADA and how employers must deal with disabled employees. The ADAAA:

  • Emphasizes that the definition of disability should be construed in favor of broad coverage for individuals under the Act
  • Prohibits consideration of the impact of any mitigating measures, such as medication or corrective devices (with the exception of eyeglasses and contact lenses), when determining whether an individual is disabled
  • Includes as disabilities impairments that may be episodic or in remission, as long as when the impairment is active, it substantially limits a major life activity
  • Provides that, as long as the impairment is not transitory (with a duration of six months or less) or minor, an individual who claims to be “regarded as having a physical or mental impairment” needs only to show he or she was subjected to discriminatory action based on the employer’s perception of an impairment

By virtually removing any legal challenge to an individual’s impairment as a disability, the courts and agencies that handle disability discrimination cases will focus on the standards for determining the level of severity for an individual’s impairment to significantly limit the major life activity.

Expect more claims

The EEOC will draft new regulations to implement the broad intent of Congress. Because employers cannot consider corrective measures that reduce the impact of any impairment on an employee, employers will probably face more employees and applicants seeking some form of accommodation.

As more individuals fall within the protections of the ADA and as the courts wrestle with the new definitions under the act, employers can expect to see more claims filed with the EEOC—and increased litigation.


Robert C. Ludolph is a partner with Pepper Hamilton LLP. He is an employment litigator and chairman of the Labor and Employment Practice Group in the firm’s Detroit office. He can be reached at (313) 393-7368 or ludolphr@pepperlaw.com.

Heather A. Hoyt is an attorney with Pepper Hamilton LLP. Reach her at (610) 640-7833 or hoyth@pepperlaw.com.

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