Part II: ADA Amendments — What Difference Will They Make If They Become Law?

In a previous post, we began this series on legislation to amend the Americans with Disabilities Act (ADA) with a brief introduction to the ADA Amendments Act of 2008 (“ADAAA”), passed by the House at the end of June.

In this post, we continue the series by examining how the ADAAA, now before the Senate, would alter the substantial-limitation-of-major-life-activities element of the ADA’s definition of disability.

The Definitional Issue

Is an amputee, a cancer patient, a diabetic, or someone who is hearing- or vision-impaired considered “disabled” for purposes of litigating their discrimination claim under the ADA?

The answer, in recent years, has often been “no,” according to several key Supreme Court decisions and many lower court decisions. Without being considered disabled, such persons have been unable to pursue claims under the ADA.

As described by Andrew Imparato, President and CEO, American Association of People with Disabilities:

[T]he broad remedial statue that Congress wrote and passed in 1990 has fallen victim to a form of judicial activism whereby the U.S. Supreme Court and the lower federal courts have made it increasingly difficult for individuals with epilepsy, diabetes, amputations, various forms of cancer, and a wide range of mental and physical conditions to establish that they have a disability for purposes of the ADA.

On account of these narrowing court decisions, Americans who experience employment discrimination on the basis of their disabilities are increasingly precluded from reaching the issue of whether they were treated fairly in the workplace because their cases are being thrown out of court on the issue of whether their disability is “severe enough” to come under the protections of the ADA.

In fact, data suggests that as many as 97% of all disability discrimination cases are decided in favor of the employer.

(Congressional testimony on H.R. 3195, the ADA Restoration Act of 2007, January 29, 2008)(pdf).

As Imparato points out, the main sticking point in many court decisions interpreting the ADA is whether someone is sufficiently disabled to move forward with a claim of discrimination or failure to provide reasonable accommodation.

Often, employers who find individuals “too disabled” to work certain jobs take the position in litigation that such individuals are not in fact “disabled” at all, for purposes of the ADA.

Avoiding this “Catch-22″ is one of the main goals of the ADAAA. Several statutory changes are intended to achieve this goal, the first being a change in the manner and extent to which a person’s physical or mental condition must impact their life in order for them to qualify as disabled.

“Substantial Limitation” vs. “Substantial Impairment”

In Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), the Supreme Court applied the existing definition of disability under the ADA: “a physical or mental impairment that substantially limits one or more … major life activities.”

The Court in Toyota also applied an EEOC regulation defining “substantially limit” as making the person “unable to perform a major life activity that the average person in the general population can perform”; or “significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”

The Court also said that the terms “substantially limited” and “major life activity” “need to be interpreted strictly to create a demanding standard for qualifying as disabled . . . . ”

In Toyota, the Court found that an assembly line worker with carpal tunnel syndrome was not disabled because she was not substantially limited in the major life activity of performing manual tasks.

The Court’s reasoning pivoted around the fact that she could still “brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house,” although she had to “avoid sweeping, . . . quit dancing, . . . occasionally seek help dressing, and . . . reduce how often she plays with her children, gardens, and drives long distances.”

Disability-rights advocates feel this standard for determining someone’s status as disabled under the ADA — without which they have no rights under the ADA — is unduly restrictive and prevents many legitimate disability discrimination issues from being litigated.

The First Definitional Compromise — “Materially Restricts”

In reaction to Toyota and other cases applying “a demanding standard for qualifying as disabled,” when disability-rights supporters sought to amend the ADA with the original HR 3195 (“ADA Restoration Act”) they defined disability only as a “physical or mental impairment,” without any reference to the limitations, if any, the impairment placed on the individual’s life activities — an extremely broad standard.

In the compromise ADAA version as passed by the House, however, the “substantially limited” standard remains, but is modified by new definitional language providing that “substantially limits” means “materially restricts.”

As amended from the original version that was presented to the House, it is not at all clear that the proposed changes will have a great impact, as the standards are still somewhat nebulous.

Whereas the legislative intent of relaxing the “demanding standard” in defining disability is clear, the exact difference between “substantially limited” and “materially restrict[ed]” is far from clear.

In practice, some courts may not apply “materially restrict” as a major change from “substantially limit” – indeed, if the legislative history were unknown these terms might appear synonymous.

The Second Definitional Compromise — List of Major Life Activities

The current bill further attempts to relax the demanding standard for establishing disability under the ADA by defining “major life activities” as “includ(ing), but . . . not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

In addition, the bill’s definition of major life activity “include(s) the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

How Would These Definitional Changes Affect Litigation Outcomes?

Currently, the ADA itself does not define “major life activities,” but under EEOC regulations often applied by the courts, the term means “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

So both the current regulation and the proposed statutory amendment use language indicating that the list is non-exclusive (“including but not limited to” vs. “such as”). The activities added to the list are: eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, and communicating, as well as the entire list of bodily functions.

Court decisions have been somewhat inconsistent with respect to some of these activities. See National Council on Disability, Policy Brief Series: Righting the ADA, No. 13 — The Supreme Court’s ADA Decisions Regarding Substantial Limitation of Major Life Activities.

But many have been considered to be major life activities more often than not, so the modification of this list is not a particularly significant change, though it will help promote uniformity in court decisions on the issue of what amounts to a major life activity.

On the other hand, the addition of major bodily functions has the potential to significantly expand ADA coverage to include large numbers of people with medical conditions not considered to be disabilities in common parlance, including such common ones as high blood pressure and asthma.

This has the effect of changing the ADA from a law focused on conditions truly amounting to disabilities to one providing broad protection against discrimination because of almost all medical conditions, although the condition still must have some materially restricting impact on major life activities or bodily functions.

Whether or not that was the original Congressional intent in passing the ADA 1990, it seems now to be desired by a large majority in Congress.

This change would certainly be expected to allow more cases to be considered on the merits, rather than getting hung up on whether the condition in question is truly a “disability” under the ADA.

When considering issues of possible reasonable accommodation or disability discrimination from the employer perspective, my inclination has always been that one is far better off assuming the condition may be a disability and assessing the situation that way than counting on hiding behind the defense that it is not a disability. With the amended definitions, this will be even more true.

Related Resources

Senate Testimony of a Disabled Person Whose Daily Living Adaptations Rendered Her Non-Disabled Under Current ADA Interpretations


McClure Testimony before Senate on ADA Amendments Act – Get more Legal Forms

House Press Conference

Photo credit: bunnyandcoco via flickr

1 Comment

  1. Joe

    I was told that Postal employees are not covered by the ADA and the amendment of the ADA does not pertain to USPS. I was declined for a reasonable Accommodation because the USPS says that because my asthma condition is easily remedied when i use my inhaler my asthma MAY not be a disability. They use the definition as to the DOL of what is a disability. Now I am about to lose my job .

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