Americans With Disabilities Act: Disabilities Redefined for 2009

Robert G. Chadwick, Jr., Labor-Employment Lawyer for Management.

The signing of the ADA Amendments Act of 2008 leaves unanswered a question which has been debated since the enactment of the Americans with Disabilities Act of 1990, "Who qualifies for statutory protection under the Act?"

A 1986 report by the National Council on Disability noted that varying definitions of disability made it difficult to estimate the number of disabled Americans. The report said that the estimates of the number of disabled persons ranged from 160 million under a "health conditions approach", which looks at all conditions that impair the health or normal functional abilities of an individual, to 22.7 million under a "work disability approach", which focuses on an individual's reported ability to work.

Signed into law on July 26, 1990, the Americans With Disabilities Act ("ADA") was regarded as the most sweeping civil rights legislation since the Civil Rights Act of 1964. With the varying definitions of disability, however, a debate has been ongoing for more than 18 years as to the Act's threshold question: Who qualifies for statutory protection? The history of this debate begins with the ADA itself and continues with the signing, on September 25, 2008, of the ADA Amendments Act of 2008.

Statutory Definition: The ADA begins with the findings that "some 43,000,000 Americans have one or more physical or mental disabilities" and that "individuals with disabilities are a discrete minority." The Act then provides that disability "means, with respect to an individual –

1. a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
2. a record of such impairment; or
3. being regarded as having such an impairment.

Supreme Court Definition: The Supreme Court viewed the ADA's findings as to the number of disabled Americans as evidence that the definition of "disability" was intended to be narrow, not broad.

 Corrective and Mitigating Measures: In 1999, the Court said that corrective and mitigating measures should be considered in determining whether an individual is disabled under the ADA. In Sutton v. United Airlines, Inc., the Court found that severely myopic pilot applicants were not disabled because corrective lenses allowed them to achieve 20/20 vision.  The Court reasoned that if Congress intended to reach the 100 million Americans with vision impairments, the ADA would not have cited the much smaller number of 43 million persons.

"Substantially Limits" and "Major Life Activities": In 2002, the Court said that the estimate of 43 million disabled persons meant that the terms "substantially limits" and "major life activities" needed "to be interpreted strictly to create a demanding standard for qualifying as disabled."  In Toyota Manuf., Kentucky, Inc. v. Williams, the Court said that a claimant was not disabled merely because her carpal tunnel syndrome and tendonitis prevented her from performing her automobile assembly line job.  The Court said that when "addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's lives, not whether the claimant is unable to perform the tasks associated with her specific job."

"Regarded As": In 1999, the Court construed the third prong of the definition as requiring a showing that an individual was regarded "as having an impairment that substantially limited a major life activity." In Sutton, the Court held that the claimants did not meet this burden merely because they were denied employment based on vision impairments.

Congressional Reaction: Studies revealed that the Supreme Court definition had a substantial impact upon disability discrimination litigation; employers prevailed in more than 90% of all ADA cases. In response, the ADA Amendments Act of 2008 was enacted with the express purpose of overruling the Supreme Court definition. The new legislation is effective on January 1, 2009.

The "New" ADA Definition: The original ADA definition of disability is retained but several clarifications are offered:

Findings and Purpose: The original findings as to the number of disabled Americans have been removed from the Act.

Broad Construction: The ADA now commands that the definition of disability, including the term "substantially limits", "be construed in favor of broad coverage of individuals under the Act, to the maximum extent permitted by the terms of this Act."

Impairment Which is Episodic or in Remission: The Act clarifies that such an impairment is a disability if it would substantially limit a major life activity while active.

Corrective and Mitigating Measures: Mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in determining whether an individual has a disability.

Major Life Activities: The term is broadly defined as including, but not limited to:

1. "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working;" or
2. "the operation of a major bodily function [e.g.]... functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Regarded as having an Impairment: Unless the impairment is transitory or minor, the third prong of the definition is now satisfied if a claimant shows that he has been subjected to an action prohibited by the Act because of an actual or perceived impairment without regard to whether the impairment limits or is perceived to limit a major life activity.

The Debate Continues: The new definition significantly expands the reach of the ADA, but leaves unanswered questions: Does the Act adopt the "health conditions approach" which accounted for 160 million Americans in 1986? Is the definition less inclusive than this approach? Is the definition actually more inclusive since it protects persons who are merely regarded as having an impairment? The issue thus remains: Who qualifies for statutory protection?

This much is certain; the new definition will be tested by claimants who were deterred from filing ADA suits by the narrow Supreme Court definition. Disability discrimination litigation will increase.