When President George W. Bush signed the ADA Amendments Act of 2008 (ADAAA) in September, he eliminated employers’ best defense to ADA claims - showing the employee was not considered disabled. Ironically, the ADAAA amended the original ADA signed by his father, former President George H.W. Bush, in 1991. The original ADA was a delicate compromise between business groups and the disability and civil rights communities. The new law became effective on Jan. 1 and employers need to be prepared as the number of people who now qualify as disabled is skyrocketing.
WHEN THE GOING GETS TOUGH, CHANGE THE RULESUnder the old law, employers had become very adept at winning ADA lawsuits. In 2004, employers won 97 percent of ADA employment discrimination lawsuits that went to trial. That’s an astounding percentage. Employers were successful because the Supreme Court narrowed the scope of impairments that qualified as disabilities.
The result of such successes was a backlash, best summarized by ADAAA bill sponsor Steny Hoyer (D-Md.), “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. 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.”
It bears repeating that Representative Hoyer states “a disability need not be disabling.” In six words, he has told you what to expect under the new ADA. The new rules translate into tens-of-thousands more Americans now being able to claim they are disabled. Let’s take a look.
SO WHAT ISN'T A DISABILITY?The short answer is, not much. Under the old law, the Supreme Court required, in the famous Toyota Motor case, a disability to substantially limit a major life activity. The disability had to prevent or severely restrict an individual from doing activities that are of central importance to most people’s daily lives.
In response, the ADAAA creates a list of major life activities so broad that it effectively neuters the Supreme Court’s ruling. The list includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, communicating, and concentrating. It also covers any impairment that affects major bodily functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Just in case there is some obscure condition that doesn’t fit into any of those categories, the ADAAA mandates the definition of disability to be broadly construed in favor of maximum coverage under the Act. In other words, it just became a lot easier for an employee to prove they are disabled.
For example, the ADA used to not cover conditions such as carpal-tunnel syndrome, severe back pain, obsessive-compulsive disorder, learning disabilities, and depression. Under the ADAAA, they are probably covered. Since normal cell growth is now protected by the ADA, will premature hair loss be recognized as a disability?
NO SYMPTOMS? NO PROBLEM!Not only is virtually every impairment a disability, the impairment’s impact on the employee no longer matters. The amendments remove any consideration of the role proper treatment may be having or if the employee’s condition is in remission.
In Sutton v. United Airlines, the Supreme Court permitted courts to consider the effects of treatment in determining whether an individual was disabled. In other words, if your migraine headache goes away with regular doses of Advil, then you are not considered disabled by the ADA.
The ADAAA prohibits courts from considering mitigating measures in determining whether an individual is disabled. The one big exception is eyeglasses and contacts. Courts are still permitted to consider their mitigating effects on vision.
Consider a person with bipolar disorder. Although a serious condition, it is treatable with medication. Someone taking appropriate medication doesn’t have symptoms and the condition has little impact on their daily life. Under the old law, the bipolar employee would not be considered disabled. No more. Now the impairment is judged without any consideration of the success of treatment.
Not stopping there, the new law extends coverage to impairments that are episodic or in remission. The cancer survivor, whose pancreatic cancer is in remission, is now disabled. The survivor has no symptoms and the cancer has no impact on his life, but he is considered disabled.
Conditions that are now likely disabilities include epilepsy, hearing loss, diabetes, muscular dystrophy, amputation, intellectual disabilities, multiple sclerosis, cancer, head trauma, cerebral palsy, heart conditions, mental illness, HIV, immune disorders, liver disease, kidney disease, dyslexia, depression, ADHD, obsessive-compulsive, and learning disabilities - just to name a few.
WHAT DOES IT ALL MEAN FOR MY BUSINESS?First, employers should assume that everyone who claims a disability is going to be considered disabled. Every disabled person is entitled to a reasonable accommodation unless the accommodation creates an undue hardship. Employers are also forbidden from discriminating against a disabled person in any term of employment such as hiring, firing, and promotions.
Worse, ADA lawsuits are now much harder to win. Employers can no longer persuade a judge with a summary judgment motion that an employee’s multiple sclerosis is not a disability because it has been in remission for two years. Instead, the plaintiff’s attorney will be able to subpoena the company CEO (it makes for great theatre) to explain to a jury why not giving the employee a cubicle closer to the elevator and fire escape was an “undue burden” for the company. And that is before the jury considers punitive damages.
SO WHAT SHOULD I DO?How can employers avoid being targeted with ADA lawsuits? The first step, don’t wait! Educate yourself about exactly how the law has changed. There is no grace period; plaintiff’s attorneys are already looking for mistakes. They know many employers are not ready for the changes. Don’t prove them right.
Books and Web-based resources on the ADAAA are readily available. If you do not have time to read up on it, sign up for a seminar on the new ADA laws. Seminars are great resources because they typically give you everything you need to know about the topic and a presenter will usually take your questions. You also get helpful reference materials to keep for future use.
The first step is educating yourself because only then can you start educating your supervisors and managers. Your managers and supervisors need to understand that impairments that were not covered by the ADA before, likely now are. The employee complaining about migraine headaches or lower back pain has to be taken more seriously. Remember, your supervisors are likely to be the first ones to be confronted with a claim that a disability of some type makes an employee unable to perform part of his or her job. They must respond properly.
Once employees learn how easy it is to claim a disability, managers and supervisors could be flooded with requests for accommodations. They must be prepared for these requests and understand the importance of not making snap judgments. Snap judgments, even correct ones, are inevitably poorly documented and thus look weaker in court than they truly are.
Encourage your managers to document every request for accommodation and consider their options. Is the accommodation an undue hardship? If it is, how are you going to prove that to a court when the employee sues you?
Suppose you want to fire an employee for excessive tardiness and absenteeism. Suppose the employee also happens to suffer from diabetes and is therefore disabled. When he sues you for discriminatory termination under the ADA, what documents prove his diabetes played no role in your decision to terminate him? If you answered, “Not many,” you just lost.
Don’t wait for a plaintiff’s lawyer to explain the changes in the law to you in his complaint. Take the time to educate yourself and your managers about what the law requires. Ask questions. Seek professional help in developing policies for your managers that will survive court scrutiny and even deter lawsuits. It’s that or get comfortable in the witness chair.