The ADA Amendments Act of 2008 Sharon Rennert Office of Legal Counsel EEOC

ADA Amendments Act of 2008 Went into effect on January 1, 2009 Based on Supreme Court precedent, statute not retroactive All provisions of the Amendments Act apply to the Rehabilitation Act Requires EEOC to draft regulations consistent with the Amendments Act At this time, I do not know when the Commission will put out proposed regulations to implement the ADAAA. But, such proposed regulations will be coordinated first with other federal agencies before being published and open for public comment. After reviewing all comments and making any changes, a final rule will be published.

Why Did Congress Amend the ADA? (Part 1) Congress intended the ADA definition of disability to be construed broadly but courts were finding too many people outside the ADA’s protections The ADA’s definition of “disability” was based on Section 504 of the Rehabilitation Act of 1973, which courts pre-ADA construed broadly, but post-ADA construed narrowly

Why Did Congress Amend the ADA? (Part 2) The Supreme Court’s decisions in the Sutton trilogy (mitigating measures) and in Toyota Motor Mfg., KY v. Williams (severe restriction required) construed the term “disability” too narrowly Congress found that the EEOC’s current regulation, defining “substantially limits” as “significantly restricted,” sets too high a standard and thus was inconsistent with Congressional intent

Why Did Congress Amend the ADA (Part 3) The Supreme Court’s decision in Toyota also incorrectly required that “substantial limitation” be a “demanding standard”

Definition of “Disability” Basic 3-part definition remains the same: A physical or mental impairment that substantially limits a major life activity; A record of such an impairment; Being regarded as having such an impairment

How Definition of “Disability” Changes (Part 1) Provides illustrative list of major life activities that includes for the first time “major bodily functions” Specifically rejects high standards used by EEOC and Supreme Court to define a “substantial limitation” Positive effects of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability”

How Definition of “Disability” Changes (Part 2) Impairment can be a disability even if episodic or in remission “Regarded as” Definition Expanded Remember: Goal of all of these changes is to broaden definition and make it much easier/quicker to find disability without a demanding analysis

Major Life Activities Contains most of the major life activities that EEOC has recognized Contains some activities that EEOC has not specifically recognized, such as bending, reading, and communicating Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions List of major life activities is not exhaustive Why Add Major Bodily Functions? Think of Justice Ruth Bader Ginsburg’s recent bout with pancreatic cancer. Cancer identified when small. According to new reports, missed only 3 weeks of work. Perhaps difficult to find substantial limitation in “traditional” major life activities, such as caring for oneself. Yet, pancreatic cancer is one of the most serious forms of cancer. Based on Supreme Court narrowing definition of “disability,” lower courts found a number of people with similar, serious forms of cancer not covered by ADA. To make it easier to find coverage for conditions like cancers that did not seem to easily allow a finding of “substantial limitation” in the “traditional” category of “major life activities,” Congress added “major bodily functions” to this category. Examples: Cancer (breast, lung, prostate): abnormal cell growth Kidney disease (requiring dialysis): interferes with bladder function HIV infection: immune system

Substantially Limits Congress clear that EEOC and Supreme Court standards too high Congress not clear on what standard should be applied Legislative history still focuses on comparing the condition, manner, and duration in performing a major life activity as compared to most people in the general population

Mitigating Measures medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies use of assistive technology reasonable accommodations or auxiliary aids or services learned behavioral or adaptive neurological modifications (monocular vision, learning disabilities). Not an exhaustive list. Must disregard the ameliorative/positive effects of these mitigating measures. Can still take into account negative effects of any mitigating measure (e.g., medication causes birth defects and thus substantially limits the major bodily function of reproduction).

“Ordinary Eyeglasses or Contact Lenses” “Shall” take these into account in determining “disability” Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error” Distinguished from the mitigating measure of “low vision devices” which are defined as “devices that magnify, enhance, or otherwise augment a visual image”

Impairments that are Episodic or In Remission Will be disabilities if substantially limit a major life activity when active Episodic: impairments that may not affect a person 24/7 but which periodically flare up: epilepsy, mental illnesses or disorders, multiple sclerosis In Remission: Cancers

“Record of” a Disability 2nd definition All of the changes reviewed for 1st definition (e.g., disregarding ameliorative effects of mitigating measures) would be applied to a “record of” situation Probably much more rare to need this definition for coverage given expansion of 1st and 3rd definitions

“Regarded As” Disabled Covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment No requirement that employer perceive impairment to be limiting “Regarded as” would exclude impairments that are transitory (six months or less) and minor Individuals “regarded as” disabled not entitled to reasonable accommodation This means that if an employer makes an employment decision (e.g., hiring, promotion, termination) based on an individual’s real or perceived impairment, then that meets the “regarded as” definition and the employer would have to defend its actions (i.e., explain why the impairment justified the employer’s actions).

“Regarded as” Disabled If employer makes employment decision (e.g., hiring, demotion, promotion, discipline, annual evaluation, compensation, termination) based on individual’s actual or perceived impairment, employer has regarded individual as having a disability and must defend its actions

Other Provisions Employers using uncorrected vision standards as a qualification standard for certain jobs must show that they are job-related and consistent with business necessity In the general prohibition of discrimination, the phrase “discriminate on the basis of a disability” replaces “discriminate against a qualified individual with a disability because of the disability of such individual” Bullets 2 and 3 are intended to make the ADA’s language closer to that of Title VII. An individual with a disability would still have to show that s/he is qualified for a job, but these changes are intended to minimize the focus on being qualified and instead shift it to the legitimacy of an employer’s actions.

Watch EEOC Website Summary of the ADA Amendments Act Watch for announcement about proposed regulation Watch for changes to EEOC publications affected by the ADA Amendments Act www.eeoc.gov

Helpful Documents Q&A on the ADA Amendments Act published by the Dept. of Labor www.dol.gov/esa/ofccp (Highlights) Summary of the ADA Amendments Act published by the Job Accommodation Network www.jan.wvu.edu/bulletins/adaaa1.htm

Sharon Rennert 202-663-4676 Sharon.rennert@eeoc.gov