UPDATE--ADA Amendments Become Effective

On September 25, 2008 President Bush signed into law the ADA Amendments Act of 2008 (ADAAA). The ADAAA became effective on January 1, 2009. The ADAAA amends the Americans with Disabilities Act (ADA) in several important ways. The net effect of the ADAAA is to broaden the ADA’s definition of disability, effectively overturning decades of case law that had interpreted disability narrowly and thereby restricted the class of persons allowed to bring ADA claims.

Under the ADA, a disabled person is one who either (a) is “substantially limited in a major life activity”; (b) is “regarded as” disabled; or (c) has “a record of” disability. For years, courts narrowly interpreted these terms, meaning a great many people with serious physical or mental impairments were not considered disabled. For example, under the pre-ADAAA regime, a person was not “disabled” if she could take medication or use a medical device (such as a prosthetic limb) that mitigated her condition. A person was also not “disabled” if her impairment—although completely debilitating—was only a temporary or sporadic condition. The case law was rich with examples of people with serious health conditions (such as cancer) who were denied relief under the ADA.

The ADAAA left the ADA’s definition of disability intact. But the law made the following changes that should have the effect of broadening the class of persons who will now be considered “disabled.”

• The ADAAA states that the definition of “disability” should be broadly interpreted.
• The ADAAA instructs that mitigating measures, other than ordinary eyeglasses or contact lenses, should not be taken into consideration when determining whether a person is disabled. Prior to the ADAAA, a person was not considered disabled if she could take medication or use a medical device, such as a prosthetic, to mitigate her disability. The ADAAA instructs that such mitigating measures, other than ordinary eyeglasses or contact lenses, should not to be taken into consideration.
• The ADAAA instructs that an individual who is “regarded as” disabled need not prove that her perceived impairment meets the definition of an actual disability, unless the impairment is merely transitory or minor. Before the ADAAA, an employee who was “regarded as” disabled needed to prove that her perceived disability substantially impacted a major life activity, i.e., that the perceived disability qualified as an actual ADA disability. The ADAAA eliminates that requirement.
• The ADAAA clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The ADAAA expands considerably the definition of major life activities to explicitly cover major bodily functions (e.g., functions of the immune system, digestion, bowel and bladder functions, etc.) and certain major life activities (e.g., caring for oneself, performing manual tasks, learning, bending, concentrating, and thinking).

The ADAAA effectively overturns a decade’s worth of judicial decisions that had narrowly interpreted the definition of “disability” and thereby limited disabled employee’s access to justice. If you believe you have been the victim of disability discrimination, contact the attorneys of Fried & Bonder, LLC.