Defining Disabilities: Three Recent EEOC Cases To Test The Boundaries Of The Amended ADA

July 19, 2011

For 20 years, the Americans with Disabilities Act (“ADA”) provided solace and relief to employees who believed their employers discriminated against them because of a real or perceived disability. Through voluminous decisions, courts have defined the contours and limits of individuals defined as disabled under the ADA. Believing the Supreme Court and lower courts overly limited the definition of the term “disability,” Congress enacted the Americans with Disabilities Act Amendments Act (“ADAAA”), effective January 1, 2009. Because these amendments are not retroactive, cases interpreting these new amendments are few. The case Rohr v. Salt River Project Agricultural Imp. and Power Dist., 555 F.3d 850 (9thCir. 2009), provides a detailed description of the changes to the ADA, but applies the prior act. The Ninth Circuit court of appeals did note that the ADAAA could provide the plaintiff, a diabetic, with additional support. On September 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) announced the filing of three cases that will test the limits under the modified definition of the term “disability” under the ADAAA. First, a brief description of this modified “disability” definition.

With the ADAAA, Congress overrode the limiting Supreme Court decisions, such as Sutton v. United Airlines Inc., by significantly broadening the definition of “disability” in three significant ways. First, the definition contains language that clarifies what activities are “major life activities,” and explicitly lists the following as “major life activities:” caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The Act also includes the following bodily functions as “major life activities:” functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive.

Second, the ADAAA broadly encompasses impairments that substantially limit major life activities. An impairment need only substantially limit one major life activity to be considered a disability. Also, the Act covers any impairment that is episodic or in remission, such as epilepsy or cancer, that would be considered a disability when active.

Third, and perhaps the most striking amendment, the ADAAA rejects the requirement set forth in Sutton that whether an impairment substantially limits a major life activity is to be determined with reference to mitigating measures. The ADAAA makes explicit that the “substantially limiting” analysis shall be made without regard to the “ameliorative effects” of mitigating measures. Such mitigating measures include:

  • Medicine, medical equipment, supplies, appliances, prosthetics including limbs and devices, hearing aids including cochlear implants;
  • Use of assistive technology;
  • Reasonable accommodations or auxiliary aids or services; or
  • Learned behavioral or adaptive modifications.

This significant modification to the ADA means that impairments are to be evaluated in their unmitigated state. For example, diabetes will now be assessed in terms of its major life activities when the diabetic does not take her insulin or medicine and does not require behavior adaptations such as a strict diet.

Three United States district courts will soon put these adapted standards to the test with the three cases filed by the EEOC, as announced September 9, 2010. First is EEOC v. Eckerd Corporation d/b/a Rite Aid, filed in the Northern District of Georgia. Here, the EEOC alleges discrimination against a long-time employee who requested a stool to sit on to accommodate his severe arthritis in his legs. The employee had used the stool for seven years without incident, yet in 2009, a new district manager decided that the company would no longer accommodate the alleged disability. Second is EEOC v. Fisher, Collins and Carter, filed in the District of Maryland. There, the EEOC alleges that the employer fired two long-time employees because they had diabetes and hypertension despite years of successful performance. The two employees noted on a company health questionnaire that they had these conditions and were subsequently selected for a reduction-in-force on January 21, 2009. The company retained less-qualified, non-disabled employees. Third is EEOC v. IPC Print Serv’s, Inc., filed in the Western District of Michigan. There, the EEOC alleges that the employer fired an employee stricken with cancer rather than allowing him to work part time. The employee sought to work part time while completing his treatment, but the employer terminated employment on the grounds that he exceeded the maximum hours of leave allowed under company policy.

Legal forecasting is an imprecise art form, but these cases appear to reflect the three major changes to the ADA’s definition of “disability” listed above. All three cases may result in a ruling that the employees in question are qualified individuals with a disability under the ADAAA. In Eckerd, the court must consider in its analysis that the ADAAA explicitly lists “sitting” and “standing” as major life activities and determine whether arthritis substantially limits those activities without reference to mitigating measures such as a stool. The Rosh case is instructive as to Fisher, Collins and Carter because the court provides a discussion about how the ADAA will further support the contention that diabetes is a disability. In IPC Print, the Court must evaluate cancer in light of the new provision that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active.

Regardless of how these cases resolve, the ADAAA is a major step in the evolution of disability law. Employers should be proactive in re-examining their policies on employees with disabilities and providing updated supervisor training on ADAAA provisions. Without question, employers should also continue to follow the bedrock principle that employees should be evaluated as to their qualifications, not their disabilities.

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