Recent amendments to the Americans with Disabilities Act (“ADA”) significantly increases employers’ obligations. It not only increases the number of individuals covered but also increases the types of impairments protected. The amendments specifically reverse two U.S. Supreme Court decisions that narrowed ADA coverage. Congress criticized the Equal Employment Opportunity Commission (“EEOC”) for setting too high a standard for individuals to claim protection.
- Broader definition of “Disability”:
The courts, and therefore employers, are directed to adopt a broader standard in determining disability. The amendments direct the courts to provide coverage for plaintiffs “to the maximum extent permitted.”
- “Substantially” limited language loosened:
The amendments specifically reject U.S. Supreme Court decisions that required a high level of impairment for coverage. The amendments reduce the degree of impairment required and provide that an impairment need not limit other major life activities to be considered a disability. The amendments also allow impairments that are episodic or in remission if they substantially limit a major life activity when active.
- Mitigating measures are not to be considered:
Mitigating measures such as medications, prosthetics, hearing aids, etc. are to be ignored when determining coverage. However, ordinary eyeglass or contact lenses can be considered.
- Broad definition of “major life activity”:
It is now likely that there will be few, if any, activities that will not be a “major life activity.” The amendments provide an extensive list of “major life activities” including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” A major life activity also includes the operation of 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.
- The “regarded as” provisions are expanded:
Previously, employees had to establish the employer “regarded them as being substantially limited.” Now, they only have to show an adverse action due to an “actual or perceived physical or mental impairment, whether or not the impairment limits, or is perceived to limit, a major life activity.” The “regarded as” provision does not apply to impairments having an expected duration of six months or less.
The amendments state that nothing in the Act provides a “basis for a claim by an individual without a disability”; thus, reverse discrimination claims are unavailable. In addition, the amendments conform the ADA to Title VII and other similar anti-discrimination statutes by providing that a plaintiff can be successful by showing discrimination “because of” the individual’s protected disability. Finally, the amendments direct the EEOC to issue regulations and guidance to define “substantially limits” to a broader, lower standard than currently exists.
The amendments cover more individuals and make it easier for plaintiffs to prove discrimination claims.
Employers must be very cautious in dealing with the law and can expect to provide an expanded level of accommodation to a greater number of employees.
Employers can still defend claims by showing legitimate non-discriminatory reasons for an employment action, but it will be more difficult to obtain summary judgment.
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