August 11, 2008

On June 25, 2008, the U.S. House of Representatives overwhelmingly approved by a vote of 402 to 17 the ADA Amendments Act of 2008, a bipartisan bill that proposes to reverse a number of U.S. Supreme Court decisions rendered since 1999 that have found employees to be ineligible for protection provided by the Americans with Disabilities Act of 1990 (“ADA”), and to, thus, broaden the application of the ADA. Proponents of the legislation within the legislature and various organizations, including civil rights groups, disability advocates and trade organizations, argue that, since the ADA was enacted, courts have drastically reduced the number of workers protected from disability discrimination and that the ADA must be broadened in order to apply as it was intended to be applied.

The amendments would more fully define “disability” under the ADA, including within definition of “substantially limits” and a more comprehensive list of “major life activities,” adding eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating and the operation of major bodily functions to the existing list. In addition, the amendments would clarify that the standard applied to the definition of “disability” is not intended to be a strict and demanding standard, thus rejecting the Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which currently requires an employee to prove that his or her disability limits a major life activity “significantly” or “to a large degree” in order to qualify as disabled under the ADA.

As amended, the Act would also prohibit any consideration of ameliorating effects or mitigating measures, including medication, prosthetics and hearing aids, in determining whether an employee has a disability and is, thus, protected by the ADA. This change essentially overrules the Supreme Court’s decision in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), that the determination whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment.

In addition, the amended statute would include within its coverage employees who are perceived as having an impairment, regardless of whether they actually experience a disability or whether the employer perceives them as having an impairment that limits a major life activity.

The House Bill includes a proposed effective date of January 1, 2009. The U.S. Senate introduced the Act in early August with 57 sponsors. It is not clear whether President Bush will veto the legislation. Although he supports the intent of the House bill, it has been noted that he is concerned that it could unduly expand the ADA’s coverage and significantly increase litigation. Our lawyers will continue to follow this proposed legislation and will report on any future changes or updates.