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AMERICANS WITH DISABILITIES ACT
REVISIONS
STATUS
Congress passed and
the President signed into law Public Law No: 110-325 on
September 25, 2008, revising the Americans with Disabilities
Act (ADA).
BACKGROUND
Title I of the
Americans with Disabilities Act of 1990 (ADA) prohibits
employers from discriminating against qualified individuals
with disabilities in job application procedures, hiring,
firing, advancement, compensation, job training, and other
terms, conditions, and privileges of employment. The ADA
covers employers with 15 or more employees.
Under the ADA, a
person has a disability if he has a physical or mental
impairment that substantially limits a major life activity.
The ADA also protects individuals who have a record of a
substantially limiting impairment, and people who are
regarded as having a substantially limiting impairment.
To be protected
under the ADA, an individual must have, have a record of, or
be regarded as having a substantial, as opposed to a minor,
impairment. A substantial impairment is one that
significantly limits or restricts a major life activity such
as hearing, seeing, speaking, breathing, performing manual
tasks, walking, caring for oneself, learning, or working.
The EEOC
regulations define disabilities to include: (1) 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, genito-urinary,
hemic and lymphatic, skin, and endocrine; or (2) Any mental
or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
The same
regulations indicate a disability does not include: (1)
Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from
physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or (3)
Psychoactive substance use disorders resulting from current
illegal use of drugs. Homosexuality and bisexuality are not
impairments and so are not disabilities as defined in this
part.
The Supreme Court
has ruled that the determination of whether a person has an
ADA "disability" must take into consideration whether the
person is substantially limited in performing a major life
activity when using a mitigating measure. This means that if
a person has little or no difficulty performing any major
life activity because she or he uses a mitigating measure,
then that person will not meet the ADA's first definition of
"disability."
An individual with
a disability must also be qualified to perform the essential
functions of the job with or without reasonable
accommodation, in order to be protected by the ADA. This
means that the applicant or employee must satisfy your job
requirements for educational background, employment
experience, skills, licenses, and any other qualification
standards that are job related; and be able to perform those
tasks that are essential to the job, with or without
reasonable accommodation.
NEW LAW
From the time of
its enactment, almost anyone familiar with the ADA knew that
it would be the source of litigation. Literally, thousands
of cases have been filed, trying to fill in the grey areas
created by such a challenging task as set forth by the ADA.
First, the new law
deletes two “findings” in the ADA which led the Supreme
Court to restrict the meaning and application of the
definition of disability. These findings were that there are
“some 43,000,000 Americans that have one or more physical or
mental disabilities” and that “individuals with disabilities
are a discrete and insular minority.”
Second, the law
affirmatively provides that the definition of disability
“shall be construed in favor of broad coverage of
individuals under this Act, to the maximum extent permitted
by the terms of this Act.” It retains the term
“substantially limits” from the original ADA definition but
makes it clear that this is intended to be a less demanding
standard than that enunciated by the U.S. Supreme Court in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that
the terms “substantially” and “major” in the definition of
disability must “be interpreted strictly to create a
demanding standard for qualifying as disabled,” as well as
the Court's interpretation that “substantially limits” means
“prevents or severely restricts.”
Third, the new law
prohibits consideration of mitigating measures such as
medication, assistive technology, accommodations, or
modifications when determining whether an impairment
constitutes a disability. This provision rejects the Supreme
Court's holdings in Sutton v. United Air Lines and its
companion cases that mitigating measures must be considered.
Fourth, the new law
provides new instruction on what may constitute “major life
activities.” It provides a non-exhaustive list of major life
activities within the meaning of the ADA. In addition, it
expands the category of major life activities to include the
operation of major bodily functions.
Fifth, the new law
removes from the third “regarded as” prong of the disability
definition the requirement that an individual demonstrate
that he or she has, or is perceived to have, an impairment
that substantially limits a major life activity. Under the
law, therefore, an individual can establish coverage under
the law by showing that he or she has been subjected to an
action prohibited under the Act because of an actual or
perceived physical or mental impairment.
OUTLOOK
The ADA is an
important law that has made major improvements in our
society and economy. It is, however, a complex framework.
Striking the right balance is sometimes a matter of pendulum
swings.
Most major business
groups supported the bill after changes were made to the
original proposal. From the time of passage of the original
ADA, everyone realized the courts would have to fill in many
of the blanks regarding implementation of the law,
particularly the scope of many of the definitions. As the
courts did so, disenchantment with the courts led to the
introduction of S. 3406.
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