1. OVERVIEW OF THE ADA AMENDMENTS ACT OF 2008
Seventh Floor
1501 M Street, NW
Washington, DC
Phone: (202) Fax: (202)
OVERVIEW OF THE ADA AMENDMENTS ACT OF 2008
Legal Disclaimer
The information contained in this handout is for general guidance on matters of interest only. The application and impact of laws and regulations can vary widely based on the specific facts involved. Accordingly, the information in this handout is provided with the understanding that the author is not engaged in rendering legal advice and services. As such, it should not be used as a substitute for consultation with professional legal advisors.

2. ROBERT “BOBBY” SILVERSTEIN POWERS PYLES SUTTER & VERVILLE, P.C.
Seventh Floor
1501 M Street, NW
Washington, DC
Phone: (202) Fax: (202)
PRESENTED BY
ROBERT “BOBBY” SILVERSTEIN
POWERS PYLES SUTTER & VERVILLE, P.C.
Principal, POWERS PYLES SUTTER & VERVILLE, PC—practice focuses on education, health care, and employment from disability policy perspective.[February 1, present]
Director, Center for the Study and Advancement of Disability Policy—responsibilities included analyses of education, employment, and social security policy from a disability perspective. [July 1, present]
Staff Director and Chief Counsel, Senate Subcommittee on Disability Policy—responsibilities included ADA, Rehabilitation Act, and special education legislation. [ ]
Counsel, House Subcommittee on Select Education—responsibilities included Rehabilitation Act and special education legislation. [ ]
Private Practice—co-authored Section 504 Handbook used to train OCR staff throughout the country. [ ]
Attorney-Advisor to the Branch within OCR/HEW responsible for drafting Section 504 policy. [1978]
Staff Director, Compensatory Education Project, Lawyers Committee for Civil Rights Under Law—researched and drafted the bills used in the House and Senate to reauthorize Title I of the Elementary and Secondary Education Act. [ ]
Education:
B.S. in Economics, Wharton School, University of Pennsylvania.
JD, Georgetown University Law Center.

3. The ADA is a civil rights law.
INTRODUCTION
The ADA is a civil rights law.
On July 26, 1990 President George H.W. Bush, with overwhelming bipartisan support from Congress, signed into law the Americans with Disabilities Act (ADA). [P.L ]
The ADA is a civil rights law—it was intended to provide a “clear and comprehensive national mandate” for the elimination of disability-based discrimination.

4. INTRODUCTION
The ADA was supposed to focus primarily on whether a covered entity engaged in discrimination on the basis of disability; not require an extensive analysis regarding the nature of the individual’s disability.
The primary focus of attention in ADA cases was supposed to be on whether covered entities complied with their obligation not to engage in discrimination on the basis of disability.
Through this broad mandate, the ADA was intended to protect anyone who was discriminated against on the basis of disability, including an individual—
Who actually had a current impairment;
Who did not have a current impairment but who had a record or history of having such an impairment; or
Who did not have a current impairment but who was regarded i.e., adversely treated as having such an impairment (actual or perceived).
The question of whether an individual’s impairment constitutes a disability under the ADA was not supposed to have demanded extensive analysis i.e., not unduly focus on the threshold question of whether a particular person is a “person with a disability”. Congress did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage.

5. INTRODUCTION
Examples of individuals intended to be protected under the ADA:
An individual denied employment on the basis of mental retardation.
A woman denied re-employment after her breast cancer was in remission.
An individual refused an accommodation (short breaks) on the basis of the fact that he had diabetes and needed to take insulin during the work day.
Examples of persons intended by Congress to be protected under the ADA i.e., allowed to prove discriminatory treatment are described below.
A 29-year-old man claimed employment discrimination (refusal to hire) on the basis of disability (mental retardation). In this case, the individual’s cognitive ability was comparable to that of an 8-year old; the individual graduated with a certificate in special education (not a regular diploma) and he was receiving Social Security disability benefits (the Social Security Administration had concluded that he was unable to engage in substantial gainful activity).
A woman was a registered nurse. After working for a hospital for five years, she was diagnosed with stage III breast cancer. After her breast cancer was in remission, she applied for reinstatement to a comparable position but the hospital refused.
A pharmacist had insulin-dependent diabetes. He needed to take regular, interrupted breaks to inject insulin, which enabled him to function successfully on the job. His request for a reasonable accommodation (breaks to take his insulin) was denied.

6. INTRODUCTION Series of court decisions
Restricted the broad scope of coverage under the ADA;
Interpreted the ADA strictly to create a demanding standard to qualify as disabled;
Diminished the civil rights protections of the ADA; and
Created a perverse Catch-22.
The man with mental retardation, the woman who had breast cancer, the man with diabetes and other similarly situated individuals were denied the right to make their case of discrimination on the basis of disability because of restrictive, erroneous interpretations of the definition of the term “disability” by the U.S. Supreme court and lower courts.
In each of these examples, the individuals who alleged that they had been subjected to discrimination on the basis of their disability were refused the right to prove their case because they were determined not disabled enough to be protected by the law. In a sense, the courts created a perverse catch 22 situation where an employer could fire or refuse to hire a fully qualified individual with a disability simply on the basis of his or her disability (too disabled to do the job), while at the same time maintaining that the worker was not “disabled enough” to qualify for protection under the law.
In the case of the man with mental retardation, the court concluded that he was not disabled enough to enjoy the protections of the ADA.
In the case of the woman with breast cancer, the court concluded that because she failed to show she was limited by the breast cancer on a permanent or long-term basis, she was held not to have a disability under the ADA and thus was barred from pursing her claim. FYI, she died of breast cancer four months after the court issued its ruling.
With respect to the pharmacist with diabetes, the company refused to provide the requested accommodation. The court denied the man the right to challenge the alleged discriminatory failure to provide an accommodation because the ameliorative effects of the mitigating measures he took (i.e., insulin) made him able to function in society i.e., when he took personal steps to address his impairment, he was not disabled enough to be protected by the ADA.

7. INTRODUCTION
A broad-based coalition of stakeholders and policymakers agreed to work together to restore protections under the ADA.
A broad-based coalition of stakeholders, including key representatives from the business community (e.g., the U.S. Chamber of Commerce, Society of Human Resources Management) and disability community met to work out consensus language to restore protections.
The House passed an amended version of its bill (H.R 3195) on June 25, 2008 by a vote of
The Senate introduced two versions of a bill. The first version (S. 1881) was introduced on July 26, 2007 but was not considered by the Senate. The second version of the bill (S. 3406) was introduced on July 31, 2008 with 57 sponsors and passed unanimously on September 11, 2008.
The House then passed the Senate bill without amendment on September 17, 2008.
President Bush signed the bill into law on September 25, [P.L ]

8. PURPOSES OF THE ADAAA
The ADA Amendments Act of 2008 (ADAAA) restores the original intent of the ADA by:
Reinstating the broad scope of protection;
Moving the focus from the threshold issue of disability to the primary issue of discrimination; and
Reaffirming that although the definition of disability is intended to be broad, only those individuals who are qualified and can prove discrimination are entitled to relief.

9. The ADA accomplishes this intent by:
PURPOSES OF THE ADAAA
The ADA accomplishes this intent by:
Retaining the existing definition of the term “disability” but clarifying the key words and phrases;
Changing the structure of the law to focus on discrimination;
Including construction clauses to explain intent;
Authorizing federal agencies to regulate the definition of “disability”; and
Including conforming amendments regarding Title V of the Rehabilitation Act.
The ADAAA:
Rejects interpretations by the Supreme Court and lower courts and the EEOC restricting/narrowing the scope of protection against discrimination under the ADA.
Retains (without amendment) the existing definition of the term “disability.”
Clarifies the key words and phrases in the definition of disability to make it easier for an individual to be protected by the law.
Focuses attention on whether discrimination on the basis of disability occurred rather than on whether or not the individual met the definition of disability.
Limits the circumstances under which employers and public accommodations are required to provide reasonable accommodations and make modifications to policies and practices (only when met functional test of disability not when regarded as having a disability).
Includes construction clauses clarifying that the changes to the definition and to the structure of the law should not be construed to have any impact on other disability-related benefits laws (e.g., workers compensation) nor on the applicability of current defenses against allegations of discrimination included in the ADA (e.g., fundamental alteration) .
Specifies the authority of EEOC, DOJ and DOT to issue regulations implementing the definition of the term “disability.”
Includes a conforming amendment specifying that the definition of “disability” used under the ADA shall be used for purposes of Title V of the Rehabilitation Act of 1973, as amended.

10. DEFINITION OF DISABILITY
The ADAAA retains without amendment the existing definition of the term “disability” but clarifies the key words and phrases in the definition.

11. DEFINITION OF DISABILITY
The term “disability” means, with respect to an individual—
A physical or mental impairment that substantially limits one or more major life activities of such individual (PRONG 1);
A record of such an impairment (PRONG 2); or
Being regarded as having such an impairment (PRONG 3).

12. DEFINITION OF DISABILITY
PRONG 1 (Impairment)
Key Components:
Physical or mental impairment
Substantially limits
Major life activities

13. DEFINITION OF DISABILITY
Physical or mental impairment
Currently, no definition of the phrase “physical or mental impairment” in the statute.
ADAAA does not add definition of the phrase to the statute.
Legislative history explains that definition included in current regulations is appropriate. [28 CFR ; 29 CFR (h)(10-(2); 34 CFR 104.3(j)(2)(i)]
The phrase physical or mental impairment means—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine;
(ii) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities;
(iii) The phrase physical or mental impairment includes but is not limited to, such as contagious and non-contagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism;
(iv) The phrase physical or mental impairment does not include homosexuality or bisexuality. [34 CFR ]

14. DEFINITION OF DISABILITY
Substantially Limits
ADAAA:
Rejects standards adopted by courts and EEOC (“prevent or severely restrict”) as “too demanding.”
Directs courts and agencies to construe term “broadly” and “without regard to the ameliorative effects of mitigating measures.”
Directs the courts and EEOC to view impairments that are “episodic” or “in remission” in their “active” state.
ADAAA modifies ADA as follows:
Rejects standards adopted by the courts as too demanding i.e., rejects notion that an impairment must ‘prevent or severely restrict” an individual from doing major life activities;
Rejects the standard adopted by the EEOC as too demanding i.e., rejects “significantly restricted”;
Rejects the requirement that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures
Directs the courts and agencies to interpret the term, consistent with the following guidance:
Construe the term in favor of broad coverage;
Determine whether an impairment substantially limits a major life activity without regard to the ameliorative effects of mitigating measures (illustrative list includes medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids an cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids and services; or learned behavioral or adaptive neurological modifications.
The ameliorative effects of the mitigating measures of ordinary eye glasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
Recognize that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
Consider whether a person’s activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.

15. DEFINITION OF DISABILITY
Major Life Activities
Includes illustrative list of major life activities.
Specifies that major life activities includes major bodily functions.
Clarifies that individual may be limited in only one major life activity.
ADAAA modifies the ADA as follows:
Includes an illustrative list of major life activities--caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Specifies that the term major life activity includes major bodily functions, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. An impairment can substantially restrict the operation of a bodily function if it causes the operation to over-produce or under-produce in some harmful fashion. The inclusion of major bodily functions under the term “major life activities” is important for persons with immune disorders, cancer, kidney disease, or liver disease because they no longer need to show what specific activity they are limited in to meet the statutory definition of disability.
Rejects the interpretation by the courts that an individual must have an impairment that prevents or severely restricts the individual from doing multiple activities.
Specifies that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

16. DEFINITION OF DISABILITY
PRONG 2 (Record or History of Impairment)
No change to current law or regulatory interpretation.
(3) The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. [34 CFR ]

17. DEFINITION OF DISABILITY
PRONG 3 (Regarded as having an impairment)
Individuals not subject to functional test.
Individual must prove adverse action taken because of an actual or perceived impairment.
Does not include transitory and minor impairments.
Covered entities not required to make reasonable accommodations or modifications.
The ADAAA specifies that courts and agencies must adopt a broad view of prong 3 consistent with the Supreme Court decision in Arline which found that unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as an actual impairment.
Individuals under prong 3 are not subject to a functional test (i.e., a determination of whether the person actually has the impairment or whether the impairment constitutes a disability under prong 1 or prong 2)—an individual need only establish that he or she was treated adversely i.e., subjected to an adverse action (e.g., disqualified from a job) prohibited by the ADA because of an actual or perceived impairment. This is a significant step because individuals will no longer have to prove that they have a disability or that their impairments limits them in any way.
The ADAAA specifies that impairments that are transitory and minor are excluded from eligibility under prong 3.
The ADAAA specifies that covered entities need not provide a reasonable accommodation or a reasonable modification to individual who meets the definition of disability under prong 3.

18. ADAAA CHANGES THE STRUCTURE OF THE ADA
Focus is on merits of the case i.e., whether a covered entity engaged in discrimination on the basis of disability rather than threshold question of whether the individual was disabled.
The ADAAA amends the structure of Title I of the ADA to mirror the structure of nondiscrimination protection under other civil rights statutes such as Title VII of the Civil Rights Act of 1964.
The ADAAA changes the language of Title I of the ADA from prohibiting discrimination against a “qualified individual with a disability because of the disability of such individual” to prohibiting discrimination against a “qualified individual on the basis of disability.”
This ensures that the emphasis is on the critical inquiry of whether discrimination on the basis of disability has occurred and not unduly focused on the threshold question of whether a particular person is a “person with a disability.”
Covered entity may not use qualifications standards or other selection criteria based on an individual’s uncorrected vision unless it is shown to be job-related for the position in question and consistent with business necessity.

19. CONSTRUCTION CLAUSES
Workers compensation and other disability benefit programs not affected.
Fundamental alternation defense not affected.
Reverse discrimination claims not authorized.
Workers Compensation and Other Disability Benefit Laws
The ADAAA specifies that nothing in the Act alters standards for determining eligibility for benefits under state worker’s compensation laws or federal or state disability benefit programs.
Fundamental Alteration Defense
The ADAAA reiterates that no changes are being made to the underlying ADA defense that no accommodations/modifications are required when a covered entity can demonstrate that making such modifications would fundamentally alter the nature of the service being provided.
Reverse Discrimination
The ADAAA makes it explicit that nothing in the Act provides a basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.

20. REGULATORY AUTHORITY
ADAAA clarifies that the EEOC, DOJ, and DOT are authorized to issue regulations implementing the definition of disability

21. CONFORMING AMENDMENTS
ADAAA specifies that the meaning given the term “disability” under the ADA shall be used for purposes of defining the term “disability” under Title V of the Rehabilitation Act of 1973, as amended.