ADA Amendments Act of 2008 American With Disabilities Act, as amended Effective January 1, 2009 PERS/CRCS, 12/

Purposes of 2008 Amendment Restore broad protections Reject Supreme Court’s view in Sutton that “disability” should be determined by ameliorative effects of mitigating measures Reject Supreme Court’s holding in Toyota that ADA requires “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities EEOC to revise its regulation defining “substantially limits” as “significantly restricted.”

Background of Findings Congress intended ADA to be construed broadly ADA’s definition of “disability” was based on Section 504 of the Rehabilitation Act of 1973 and was construed broadly in School Board of Nassau County v. Arline Supreme Court’s decisions in Sutton trilogy and in Toyota Motor Mfg. KY v. Williams construed term “disability” too narrowly EEOC’s current regulation defining “substantially limits” as “significantly restricted” is inconsistent with Congressional intent by expressing too high a standard.

Definition of “Disability” 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

Definition Clarified “Disability” to be construed broadly Mitigating measures not to be considered (other than ordinary corrective lenses) Impairment can be disability even when episodic or in remission

Mitigating Measures Include: Medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc. Use of assistive technology Reasonable accommodations Learned behavioral or adaptive neurological modifications

Example: Eyeglasses or Contacts “Lenses that are intended to fully correct visual acuity or eliminate refractive error” “Low vision devices” defined as “devices that magnify, enhance, or otherwise augment a visual image” (distinguished from ordinary eyeglasses or contact lenses)

Major Life Activities Include: (and are 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

Major Life Activities also include: Operation of a major bodily function (including and not limited to functions: ) Immune system Normal cell growth Digestive Bowel Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive

Regarded as Disabled Broader definition to cover anyone subjected to an action “prohibited by this Act” because of a real or perceived physical or mental impairment “Regarded as” excludes impairments that are transitory (less than 6 months) and minor Individuals “regarded as” disabled are not entitled to reasonable accommodation.

Other Provisions Employer must show that a qualification standard based on uncorrected vision is job-related and consistent with business necessity “Qualified individual” replaces “qualified individual with a disability” “Discriminate on the basis of a disability” replaces “discriminate against a qualified individual with a disability because of the disability of such individual” Effective January 1, 2009 (not retroactive to cases received by EEOC prior to January 1, 2009)

Timeline and History President George H. W. Bush signs ADAJuly 26, 1990 EEOC Issues regulations implementing Title IJuly 26, 1991 Supreme Court issues decision in Bragdon v. AbbottJune 25, 1998 Supreme Court issues Sutton trilogyJune 22, 1999 Supreme Court decides Toyota Motor Mfg., KY v. WilliamsJanuary 8, 2002 National Council on Disability issues “Righting the ADA”December 2, 2004 Legislation to amend the ADA introduced (anniversary)July 26, 2007 House passes ADA Amendments ActJune 25, 2008 Senators Harkin and Hatch introduce Senate Bill 3406July 31, 2008 President George W. Bush signs ADA Amendments Act of 2008 September 25, 2008 ADA Amendments Act of 2008 becomes effectiveJanuary 1, 2009

Compromise Bill ADA Amendments Act negotiated between business and disability groups Business groups included U. S. Chamber of Commerce, Society for Human Resource Management, and national Association of Manufacturers Disability groups include Epilepsy Foundation, American Diabetes Association, American Association of People with Disabilities and National Disability Rights Network

Source/s Equal Employment Opportunity Commission Honolulu Local Office Christopher Kuczynski, Assistant Legal Council (808) For more information: Department of Human Services Civil Rights Compliance Office (808)