When President George W. Bush signed the ADA (Americans with Disabilities Act) Amendments Act of 2008 into law in September, it signaled major changes in the legislation that prohibits workplace discrimination against people with disabilities. When the law becomes effective on Jan. 1, employers need to be prepared for those changes, which may allow many more people to claim they are disabled.

Congress’s amendments to the ADA were in direct response to a series of court rulings that “eroded the ADA’s original intent,” according to the U.S. congressman who authored the act in the U.S. House of Representatives.

“The ADA made clear that a disability need not be disabling, and allowed millions of Americans with disabilities to take advantage of all the opportunity this country has to offer. It was a tremendous stride toward equality,” said Steny Hoyer (D-Md.), one of the sponsors of the original ADA, in a statement. “However, in a series of narrow - and in my view, mistaken - rulings, the courts have chipped away at our original intent, bit by bit. By passing this bill, we have brought millions of our fellow-citizens, who were previously shut out, back where they belong: under the ADA’s protection.”

Among other changes, the new law clarifies the definition of a disability, broadens the number of activities covered under the law, and expands how workers can seek legal recourse if they believe they have suffered discrimination. With such major changes, companies need to review their current policies and prepare for the new guidelines between now and Dec. 31.

EEOC ‘EVALUATING' THE AMENDMENTS

The original ADA defined “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” The act prohibits discrimination against qualified individuals because of their disability in regards to “job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

According to the U.S. Equal Employment Opportunity Commission (EEOC), the amendments not only reject the findings of several Supreme Court decisions, but also portions of the EEOC’s regulations. The amendments act maintains the basic definition of a disability. However, the act changes the way disability is interpreted in several critical ways, honing in on specific language in the act’s definitions such as “substantially limits” or “regarded as.”

Among key changes as a result of the new law:

• It directs the EEOC to revise the portion of its regulations defining the term “substantially limits”;

• It expands the definition of “major life activities” that can be limited by a disability with two separate lists. The first list includes many activities that the EEOC has recognized, such as walking. But the list now includes activities that the EEOC hasn’t specifically recognized, such as reading, bending, and communicating. The second list covers major bodily functions, such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions;

• It basically eliminates consideration of mitigating measures other than “ordinary eyeglasses or contact lenses” when employers assess whether an individual has a disability;

• It clarifies that an impairment that is episodic or in remission is a disability, if it would substantially limit a major life activity when active;

• It excludes minor or transitory conditions that last six months or less;

• It provides that an individual subjected to an action prohibited by the ADA such as a failure to hire because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor;

• It provides that an individual does not need to establish that the impairment limits or is perceived to limit a major life activity; and

• It emphasizes that the definition of “disability” should be interpreted broadly.

The EEOC says it is currently evaluating the impact of these changes on its enforcement guidances, which it issues to help employers interpret the law correctly.

HISTORY OF THE ADA

The ADA, which actually did not take effect until 1993, was first signed into law in 1990 by President George H.W. Bush. According to the original act, those with disabilities who experienced workplace discrimination often had no legal recourse, “unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age…”

Following the passage of the ADA, the Supreme Court issued several rulings that narrowly interpreted the act. According to some members of Congress who supported the amendments, these rulings excluded many employees who should have been considered disabled.

Those controversial decisions include the 1999 ruling in Sutton v. United Airlines, which involved a pair of identical twins with vision problems that could be corrected with eyeglasses; despite the vision corrections, United Airlines refused to hire them as pilots.

The Supreme Court agreed with United, ruling that the pilots were no longer disabled because glasses corrected their vision. Justice Sandra Day O’Connor wrote, “A person whose physical or mental impairment is corrected by medications or other measures does not have an impairment that ‘substantially limits’ a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not ‘substantially limit’ a major life activity.”

Three years after Sutton, the Supreme Court addressed the issue of what constitutes a substantially limiting disability. In Toyota Motor Manufacturing, Kentucky Inc. v. Williams, the court unanimously decided that a disability should be “interpreted strictly to create a demanding standard.”

Ella Williams, the woman who brought the suit against Toyota, did not qualify under that approach. After working on an assembly line at a Toyota manufacturing plant, she developed carpal tunnel syndrome and tendonitis and could no longer do her job. In order to accommodate her, Toyota reassigned her to another job, but after several years the company began to require her to perform other tasks that her carpal tunnel syndrome and tendonitis would not allow her to complete. After being denied a request for accommodation, she ultimately resigned.

In finding that Williams was not disabled, the court pointed out that she could perform other tasks, such as household chores and maintaining her personal hygiene. The court ruled that, in order to be disabled under the ADA, a person must be unable to perform a class of manual tasks that “are of central importance to people’s daily lives.”

Rulings such as those spurred Congress to explicitly broaden the ADA through the new amendments.

WHAT EMPLOYERS NEED TO DO NOW

With the changes that broaden the definition of disabled, more employees are eligible to make discrimination claims under the ADA. Employers need to act now to ensure that their policies are compliant before the new law takes effect.

1. Get familiar with the new law.
The implications of the new law are not yet clear, and even the EEOC is working to understand all of the implications. Nonetheless, employers need to become as familiar as they can with the amendments. By seeking legal advice now, employers could head off potential lawsuits. Companies should take the opportunity to ensure they are also compliant with local and state laws - some of which may be more expansive than the new ADA.

2. Review current policies and bring them up to date.
Once employers get a handle on the new regulations, they need to make sure all company manuals, policies, and procedures are updated so they are in compliance.

3. Educate management.
The best approach to lawsuits is to head them off before they start. Employers should take this opportunity to educate their supervisors and managers about the new standards and explain that the company now has a greater obligation to carefully consider who may actually be “disabled” and what accommodation, if any, might be appropriate.

For most employers, 2009 will be a challenging year, with a new presidential administration and an economy that shows no signs of improving soon. A wave of disability discrimination lawsuits is the last thing employers need. By preparing now for the ADA Amendments Act of 2008, companies can help stop such claims before they ever start.

Publication date: 11/17/2008