Happy New Year! Congress gave American workers a huge gift this year by amending the Americans with Disabilities Act. Those amendments, which sustantially increase the protections for disabled workers, go into effect today.
Since 1992, the Americans with Disabilities Act (ADA) has prohibited discrimination against the disabled. The Americans with Disabilities Act Amendment Act (ADA-AA), which goes into effect today -- January 1, 2009 -- represents the most significant change to employment law in years. The ADA-AA greatly expands the class of persons who may seek protection as “disabled” and therefore expands responsibilities – and potential liability – for employers.
Passage of the ADA-AA was a decisive victory for advocates of employees and the disabled. After a series of court decisions during the last 15 years had steadily narrowed the reach of the ADA, Congress stepped in with the ADA-AA and told the courts in no uncertain terms that the ADA is to be interpreted far more broadly.
Why did Congress take this action?
The ADA protects disabled employees from discrimination if those employees are able to do their job “with a reasonable accommodation.” Therefore, an employee with a disability so severe that he or she cannot perform the job is not protected. To be protected by the ADA, an employee must be disabled but not too disabled.
Over recent years a series of court cases narrowed the class of people who could be considered disabled. In other words, employees who were not sufficiently disabled were found by the courts not to qualify for the ADA’s protection.
These interpretations of the ADA set up a paradox for employers, employees and courts. Advocates for the disabled and for employees complained that many employees fell through the cracks: if they were disabled enough to qualify for protection under the court decisions, they might be too disabled to show that they could still do the job.
What does the ADA-AA do?
The ADA-AA specifically overrules four Supreme Court decisions, which employers have used to argue for a narrow interpretation of the scope of the ADA.
Lower standard in the definition of disability: The Supreme Court in Toyota Motor Mfg. v. Williams, instructed lower courts to apply a “demanding standard” when determining which employees were disabled. Congress specifically rejected this narrow “demanding standard,” effectively overruling the Supreme Court’s interpretation of the ADA. The new ADA-AA states that there must be “a broad scope of protection” for employees, and specifically directs courts interpreting the ADA to protect plaintiffs “to the maximum extent permitted by the statute.”
This language will be extremely helpful to employees who are bringing discrimination suits under the ADA. Cases which might have been thrown out on summary judgment under the standard required by the Supreme Court are now likely to proceed to a jury trial, and the instructions given to the jury about what conditions might be considered a disability will be much broader.
Mitigating Measures: The ADA-AA also specifically provides that a court may not consider mitigating measures in determining whether a person’s condition is a “disability.” This change overrules the Supreme Court’s 1999 decision in Sutton v. United Air Lines, which had provided that a person was disabled only if he or she was impaired in a major life activity even after accounting for mitigating measures.
This change will provide ADA protection for a significant for number of employees whose cases would have been dismissed under previous rulings. For example, in the past, an employee whose epilepsy is controlled by medication might have been considered not disabled. Now, the ADA instructs the court to consider whether the condition without the benefit of medication would be a disability. In the past, an employee with a prosthetic or a hearing aid might also be considered not disabled if those devices allowed the employee to engage in all major life activities. Now, a court must consider the plaintiff’s condition without those adaptive devices.
Moreover, this change eliminates a common employer defense, making it impossible for employers to argue that there is some mitigating measure that the employee could have used so as not to be “disabled.”
In a nod to common sense, eyeglasses and contact lenses are exempted from the direction not to consider mitigating measures; those of us who cannot see the alarm clock without our glasses will not qualify as “blind” under the ADA.
Major Life Activity: The ADA-AA expands the sweep of the ADA by its definition of “major life activity.” Under the ADA, a disability is defined as a condition which affects a major life activity, but the original statute did not define major life activity. The Supreme Court in Toyota Motors had narrowly interpreted the phrase, frustrating the EEOC and advocates for the disabled. The ADA-AA provides a broad definition, rejecting the narrower interpretation. Now, a wide range of activities are specifically defined as major life activities, including caring for oneself, eating, sleeping, reading, concentrating, thinking, communicating and working.
Major life activities are specifically defined to include a range of bodily functions which may not be apparent to an employer, and which many courts have held did not fall within the definition of major life activities. This includes functions of the immune system, cell growth, digestive functions, reproductive functions and neurological functions. This definition will make it much easier for an employee with a disease such as diabetes, epilepsy, lupus or HIV-AIDS to show that his or her condition is a protected disability.
Episodic Impairments: The new ADA-AA also provides protection for impairments that are “episodic or in remission” if those impairments substantially affect a major life activity when they are active.
No Reverse Discrimination: The ADA-AA specifically provides that a non-disabled person cannot sue complaining that the employer has given preferential treatment to those with disabilities.
Protection against “Regarded As” Discrimination: The ADA has always protected employees from discrimination if their employer “regarded” them as disabled – whether or not they actually had a disability. In this arena also, the ADA-AA has expanded employee protection. Under the Supreme Court decision in School Board of Nassau County v. Arline, the Supreme Court held that an employee would have to make a specific showing that the employer regarded the employee as being substantially limited in a major life activity in order to show that the employer regarded the employee as disabled. Many “regarded as” cases were tossed from court because the employee could not meet this difficult burden. Under the ADA-AA, the employee must simply show that the employer regarded him or her as having a mental or physical impairment, a standard which is likely to be easier for a jury to understand and easier for an employee to prove.
What’s an Employer to Do?
Under the sweeping changes of the ADA-AA, employers are more likely to find themselves subjected to suit and employees are more likely to prevail at trial.
Probably the primary lesson of the ADA-AA for employers is “don’t assume.” Don’t assume an employee does not have a disability just because you can’t see it. Don’t assume that you can apply workplace rules across the board without making accommodations for those who may have a disability. If you as an employer are aware that an employee has a disease or impairment, make sure that you have a very good reason before telling the employees that you cannot bend the rules for him. For example, an employer who has a “no eating at the desk” rule should be prepared to make an exception for a diabetic. An employer may be legally required to be flexible with shift assignments to accommodate an employee’s need for medical treatment.
Under the ADA-AA the list of conditions which might be considered disabilities is endless, as is the list of accommodations which an employer might be required to provide. Although an employee’s request for an accommodation may seem an inconvenience, that inconvenience is minor in comparison to the risk that the employee will bring a successful discrimination suit under the ADA.