September 25, 2008
Today President Bush signed the ADA Amendments Act of 2008, which amends the Americans with Disabilities Act of 1990. The amendments will take effect on January 1, 2009 and will alter some of the key provisions in the ADA, largely in response to several Supreme Court decisions. Key changes in the Act include:
- "Regarded As" Discrimination: Under current law, an individual can demonstrate disability by showing "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." In addition, a person is protected from discrimination if he or she is "regarded as having such an impairment." Courts have found that establishing “regarded as” discrimination requires a showing that the employer regarded the plaintiff as substantially limited in a major life activity. The Act changes the definition of “regarded as” discrimination by allowing an employee to establish such discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment . . . is perceived to limit a major life activity.”
- Substantially Limits: Although Congress did not change the phrase “substantially limits” in the Act, it did enact a finding that the EEOC’s regulations defining “substantially limits” as “significantly restricted” expressed too high a standard for establishing disability. This language is expected to lead the EEOC to issue new regulations regarding the meaning of “substantially limits” and it rejects the Supreme Court’s interpretation of that phrase in Toyota Motor Mfg. Co. v. Williams, 534 U.S. 184 (2002).
- Major Life Activity: The phrase “major life activity” was undefined in the original ADA and has generated significant litigation as to its meaning. The Act identifies a number of activities—such as seeing, hearing, learning, concentrating, communicating, and working—that qualify. In addition, the Act states that the “operation of a major bodily function”—such as functions of the immune system and digestive, neurological, and brain functions—qualifies as a major life activity. The Act also states that an impairment that substantially limits only one major life activity may be sufficient to create a disability. An impairment that is episodic or in remission would still be considered a disability under the Act so long as, when active, the impairment would substantially limit a major life activity.
- Ameliorative Effects: In a pair of 1999 decisions—Sutton v. United Air Lines, 527 U.S. 184, and Murphy v. United Parcel Service, Inc., 527 U.S. 516—the Supreme Court held that in determining whether an individual is disabled, courts should take account of the ameliorative effect of “mitigating measures,” e.g., medication that resolves an otherwise disabling medical condition. The Act responds to those decisions by requiring that the “ameliorative effects of mitigating measures” not affect the disability determination. The Act does allow, however, for the ameliorate effects of “ordinary eyeglasses or contact lenses” to be considered.
- EEOC Rulemaking Authority: The Act specifically grants the EEOC, the Attorney General, and the Secretary of Transportation the authority to issue regulations implementing the definitions of terms found in the Act. Previously, the Supreme Court has questioned the level of deference to give regulations issued by the EEOC regarding the meaning of disability under the ADA. Courts are now more likely to give deference to regulations of the EEOC promulgated under the amended Act.
The Act presents a number of new and complex interpretive questions that both the EEOC and courts will be considering over the next few years. Gibson Dunn’s labor and employment attorneys have handled a number of significant cases under the Americans with Disabilities Act–including representing the winning party in the Murphy case and representing the employer on appeal in the largest ADA class action–and are prepared to assist companies and other organizations in updating compliance manuals and training procedures to conform with the Act’s new requirements, and in preparing for and defending litigation regarding the meaning of these new provisions.
Gibson, Dunn & Crutcher’s Labor and Employment Practice Group is available to assist with any questions you may have regarding these issues. For further information, please contact the Gibson Dunn attorney with whom you work or any of the following:
William J. Kilberg - Washington, DC (202-955-8573, firstname.lastname@example.org)
Eugene Scalia - Practice Co-Chair, Washington, DC (202-955-8206, email@example.com)
Jason C. Schwartz - Washington, DC (202-955-8242, firstname.lastname@example.org)
Jessica Brown - Denver, CO (303-298-5944, email@example.com)
Pamela Hemminger - Los Angeles, CA (213-229-7274, firstname.lastname@example.org)
Christopher Martin - Palo Alto, CA (650-849-5305, email@example.com)
Karl G. Nelson - Dallas, TX (214-698-3203, firstname.lastname@example.org)
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