ADA Amendments Act of 2008
The ADA Amendments Act (ADAAA) was signed into law on Thursday, September 25, 2008. The bill enjoyed bipartisan support and was passed unanimously by the US Senate and very strongly by the US House of Representatives. The law went into effect on January 1, 2009.
The purpose of the ADAAA is to restore the intent and protections of the Americans with Disabilities Act of 1990.
What it Changes or Clarifies
The law rejects the Supreme Court's ruling in Sutton v. United Airlines, Inc., which held that the determination of whether an individual's limitation was substantial should take into consideration any mitigating measures used by the individual (medications, assistive technologies, compensating behaviors, etc.).
Substantial limitation will now be determined without considering the positive effects of such mitigating measures. An exception is made for "ordinary eyeglasses or contact lenses," which may be taken into account.
"Substantially Limits" and "Major Life Activities"
The ADAAA also rejects the Supreme Court's reasoning in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, where the court stated that the the ADA should be "interpreted strictly" and that meeting the definition of disability should be "demanding."
The courts are now instructed to give a broader interpretation to the definition of disability.
Major Life Activities
Major life activities include, but are not limited to, caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
A major life activity also includes the operation of a major bodily function. Major bodily functions include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
The law also clarifies that an individual should not be excluded from protection because of the ability to do many things so long as one major life activity is substantially limited.
Conditions that are Episodic or in Remission
The law clarifies that an impairment which is episodic or in remission is still a disability if it is substantially limiting when active.
Focus of "Regarded As" Prong Changed
The "regarded as" prong of the definition of disability now focuses on how a person is treated by a covered entity.
Individuals are protected if they can establish that they were discriminated against in a way prohibited by the ADA because of either an actual or a perceived impairment, regardless of whether the impairment is substantially limiting.
There is an exception for impairments which are both minor and transitory (lasting or expected to last six months or less). Impairments that are transitory and minor might include the common cold, a sprained joint, or a broken bone that is expected to heal completely in a few weeks.
No Accommodations for "Regarded As"
While the "regarded as" prong now protects anyone who can establish discrimination, it will NOT allow that person to get accommodations or modifications of policies, practices, or procedures.
What it does NOT change
There remain three prongs in the definition of disability:
- 1) has a disability,
- 2) has a history or record of a disability,
- 3) is regarded as having a disability.
Physical or Mental Impairment
The requirement that a disability be based on a physical or mental impairment has not been changed.
This law maintains a severity test for protection under the first and second prongs of the definition of disability. An individual must either currently have an impairment that substantially limits at least one major life activity, or must have a record of an impairment that in the past substantially limited at least one major life activity.
The requirements for who must comply with the ADA (employers with 15 or more employees, state and local governments, public accommodations, telecommunications providers, transportation providers) remain the same.
The processes for filing complaints under any of the five titles have not been altered.
The enforcement agencies continue to be: Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ), Department of Transportation (DOT), Federal Communications Commission (FCC).
You can find DOJ's final rule implementing the ADAAA, as well as a collection of information on the ADAAA from the EEOC, including their implementing regulations, as well as helpful "Q&A" documents and a factsheet.