The ADA Amendments Act of 2008

1. The ADA Amendments Act of 2008 Sharon Rennert Office of Legal Counsel EEOC

2. ADA Amendments Act of 2008 • Went into effect on January 1, 2009 • Based on Supreme Court precedent, statute not retroactive • All provisions of the Amendments Act apply to the Rehabilitation Act • Requires EEOC to draft regulations consistent with the Amendments Act

3. Why Did Congress Amend the ADA? (Part 1) • Congress intended the ADA definition of disability to be construed broadly but courts were finding too many people outside the ADA’s protections • The ADA’s definition of “disability” was based on Section 504 of the Rehabilitation Act of 1973, which courts pre-ADA construed broadly, but post-ADA construed narrowly

4. Why Did Congress Amend the ADA? (Part 2) • The Supreme Court’s decisions in the Sutton trilogy (mitigating measures) and in Toyota Motor Mfg., KY v. Williams (severe restriction required) construed the term “disability” too narrowly • Congress found that the EEOC’s current regulation, defining “substantially limits” as “significantly restricted,” sets too high a standard and thus was inconsistent with Congressional intent

5. Why Did Congress Amend theADA (Part 3) • The Supreme Court’s decision in Toyota also incorrectly required that “substantial limitation” be a “demanding standard”

6. Definition of “Disability” • Basic 3-part definition remains the same: • 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

7. How Definition of “Disability” Changes (Part 1) • Provides illustrative list of major life activities that includes for the first time “major bodily functions” • Specifically rejects high standards used by EEOC and Supreme Court to define a “substantial limitation” • Positive effects of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability”

8. How Definition of“Disability” Changes (Part 2) • Impairment can be a disability even if episodic or in remission • “Regarded as” Definition Expanded • Remember: Goal of all of these changes is to broaden definition and make it much easier/quicker to find disability without a demanding analysis

9. Major Life Activities • Contains most of the major life activities that EEOC has recognized • Contains some activities that EEOC has not specifically recognized, such as bending, reading, and communicating • Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions • List of major life activities is not exhaustive

10. Substantially Limits • Congress clear that EEOC and Supreme Court standards too high • Congress not clear on what standard should be applied • Legislative history still focuses on comparing the condition, manner, and duration in performing a major life activity as compared to most people in the general population

11. Mitigating Measures • medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies • use of assistive technology • reasonable accommodations or auxiliary aids or services • learned behavioral or adaptive neurological modifications (monocular vision, learning disabilities).

12. “Ordinary Eyeglasses or Contact Lenses” • “Shall” take these into account in determining “disability” • Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error” • Distinguished from the mitigating measure of “low vision devices” which are defined as “devices that magnify, enhance, or otherwise augment a visual image”

13. Impairments that areEpisodic or In Remission • Will be disabilities if substantially limit a major life activity when active • Episodic: impairments that may not affect a person 24/7 but which periodically flare up: epilepsy, mental illnesses or disorders, multiple sclerosis • In Remission: Cancers

14. “Record of” a Disability • 2nd definition • All of the changes reviewed for 1st definition (e.g., disregarding ameliorative effects of mitigating measures) would be applied to a “record of” situation • Probably much more rare to need this definition for coverage given expansion of 1st and 3rd definitions

15. “Regarded As” Disabled • Covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment • No requirement that employer perceive impairment to be limiting • “Regarded as” would exclude impairments that are transitory (six months or less) and minor • Individuals “regarded as” disabled not entitled to reasonable accommodation

16. “Regarded as” Disabled • If employer makes employment decision (e.g., hiring, demotion, promotion, discipline, annual evaluation, compensation, termination) based on individual’s actual or perceived impairment, employer has regarded individual as having a disability and must defend its actions

17. Other Provisions • Employers using uncorrected vision standards as a qualification standard for certain jobs must show that they are job-related and consistent with business necessity • In the general prohibition of discrimination, the phrase “discriminate on the basis of a disability” replaces “discriminate against a qualified individual with a disability because of the disability of such individual”

18. Watch EEOC Website • Summary of the ADA Amendments Act • Watch for announcement about proposed regulation • Watch for changes to EEOC publications affected by the ADA Amendments Act • www.eeoc.gov

19. Helpful Documents • Q&A on the ADA Amendments Act published by the Dept. of Labor www.dol.gov/esa/ofccp (Highlights) • Summary of the ADA Amendments Act published by the Job Accommodation Network www.jan.wvu.edu/bulletins/adaaa1.htm

20. Sharon Rennert • 202-663-4676 • Sharon.rennert@eeoc.gov