Thursday, September 25, 2008

Sweeping ADA Changes for All

The Law firm of Fisher & Phillips LLP has recently published an excellent overview on their website ( of the new changes to the Americans with Disabilities Act, which go into effect on January 1st of 2009.  As set forth in the overview, the top changes are:

1. "Disability" Definition To Be Read Broadly

First and foremost, the new ADA instructs courts (and employers) to adopt a broad standard when determining whether an individual is considered disabled. The actual language of the new law states that it provides "a broad scope of protection" for employees, and provides that courts examining ADA cases need to provide coverage for plaintiffs "to the maximum extent permitted" by the statute.

2. Mitigating Measures Are To Be Ignored

When making a decision about whether an employee is considered sufficiently disabled to receive protection under the ADA, employers and courts must now ignore any and all mitigating measures being used by the individual in question. This includes medications, prosthetics, hearing aids, mobility devices, and learned adaptations. This will be, at times, a guessing game for the employer and the court, as they will be forced to make speculative assumptions about "what may be" instead of "what is."

3. Just About Anything Is A "Major Life Activity"

Up until now, the ADA was silent on what constituted a "major life activity" – that is, the areas of life that needed to be adversely affected in order for someone to claim a disability. Although the EEOC had proposed a list of recommended activities, many courts rejected the agency's broad interpretation and even the U.S. Supreme Court expressed skepticism about the list.

But the new ADA includes a thorough and exhaustive list of activities, including caring for oneself, performing manual tasks, eating, sleeping, reading, concentrating, thinking, communicating and working. Moreover, it also expressly states that the operation of any major bodily function is considered a major life activity – including functions of the immune system, cell growth, digestive functions, reproductive functions, and neurological and brain functions.

4. The "Regarded As" Prong Is More Broadly Read

In addition to impairments that substantially limit a major life activity, the ADA has always offered protection for those employees whom an employer wrongly "regarded" as being disabled. Under previous federal court interpretation, ADA plaintiffs needed to prove that the employer regarded them as being substantially limited in a major life activity, which was a difficult standard to meet. Under the new ADA, a "regarded as" plaintiff need only demonstrate that the employer perceived the individual as having a mental or physical impairment.

5. EEOC Permitted To Regulate ADA And Define "Substantial Limitation"

The new ADA also provides an express mandate to the Equal Employment Opportunity Commissions (EEOC) to issue binding regulations and other interpretative guidance to further flesh out the statute. This is significant because the U.S. Supreme Court had called into question the EEOC's authority to do so under a technical reading of the old ADA; such concerns are now eliminated. Also, the new ADA specifically requests that the EEOC provide a regulatory definition for the term "substantially limits" that lowers the standard to a level consistent with congressional intent.

6. Miscellaneous Amendments

Impairments that are "episodic or in remission" can still be considered to be disabling if, "when active," they substantially limit a major life activity. In other words, employers again need to play a guessing game and determine whether episodic or intermittent impairments could rise to the level of disability and treat employees accordingly.

The statute will attempt to conform to Title VII and other anti-discrimination statutes by changing some technical language of the act to more clearly demonstrate that a plaintiff can prevail in a claim by showing discrimination "because of" the protected disability.

Finally, the new ADA prohibits "reverse discrimination" claims – employees without disabilities cannot sue under the ADA by claiming that an employer impermissibly rejected them in favor of other individuals with disabilities.

The overview cited above goes into detail on the application of these changes for employer/employees; however, it is clear that disability discrimination claims are now on, at least, equal footing with other types of discrimination claims.

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