817 Broadway, 6th Floor, New York, NY 10003
T: 212.228.9666 / F: 212.228.7654 /
by Lee Bantle / 1 comment
The Americans with Disabilities Act (“ADA”) was amended in September 2008 by the ADA Amendments Act of 2008 (“ADAAA”). The new law took effect on January 1, 2009.
The Act reverses two Supreme Court cases, Sutton v. United Air Lines, 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) and substantially broadens the definition of disability. The ADAAA emphasizes that the definition of disability should be interpreted broadly. As more employees are now covered, it increases the number of people who are entitled to reasonable accommodations and to protection from discrimination.
Under the ADAAA, disability is still defined as: (a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record of such an impairment; or (c) being regarded as having such an impairment.
The ADAAA defines major life activities broadly stating that they include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentration, thinking, communicating, and working.
The ADAAA also defines a major life activity to include the operation of a major bodily function, including but not limited to, function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The new definition will likely increase claims by those with a disability limiting their capacity to learn, read, take tests, concentrate, write and speak. Increased claims can also be expected from those with limitations in their ability to stand, bend and lift.
Mitigating measures such as prosthetics, hearing aids, and medication will not affect the determination of whether an individual is disabled. The mitigating effect of corrective lenses may still be considered.
A condition which is episodic or in remission is a disability if it would substantially limit a major life activity when active.
“Regarded as” means being perceived as having a physical or mental impairment whether or not the impairment is perceived to limit a major life activity, unless the impairment is transitory and minor.
The ADAAA directs the EEOC to revise that portion of its regulations which defines “substantially limits” as “significantly restricts” in that its formulation expresses too high a standard. The new EEOC regulations on this subject have not yet been drafted.
A number of changes will be required in jury charges in order that they comport with the ADAAA. Reference to the ABA Model Charge illuminates the type of language that must be revised. Principally, the changes must be made to the critically important “Definition of a Disability” in section 1.06[a] of the Model Charge.
The Model Charge starts by giving a summary definition of disability as follows:
A disability . . . is defined as:
1. a physical or mental impairment that substantially limits one or more of the [plaintiff’s] major life activities;
2. a record of a physical or mental impairment that substantially limits one or more of [the plaintiff’s] major life activities; or
3. Being regarded by [the defendant] as having a physical or mental impairment that substantially limits one or more of [the plaintiff’s] major life activities.
While (1) and (2) remain accurate, (3) must be changed by dropping the language “substantially limits one or more of [the plaintiff’s] major life activities.”
The jury will need to be instructed that major life activities include, but are not limited to, all those activities set forth in the statute. In addition, the jury will need to be instructed that major life activities include, but are not limited to, the operation of those major bodily functions that are set forth in the statute.
“Substantially limits” can no longer be defined as being ‘unable to perform or significantly restricted in the ability to perform.” Nor does language that the impairment must “considerably limit” or “limit to a large degree” pass muster any longer. A lower standard must be set forth. Guidance is awaited from the EEOC. Perhaps replacing “significantly restricted” with “restricted to some extent” or “limited to some degree” would comport with the standards enunciated by the new law.
Actual text from the ADAAA seems to provide the new language which should be used:
An individual meets the requirement of being “regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
[An individual does not meet the requirement of being “regarded as having such an impairment”] for impairments that are transitory and minor. A transitory impairment in an impairment with an actual or expected duration of 6 months or less.
Again, actual text from the ADAAA seems to provide the new language:
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as – medication, medical supplies, equipment, or appliances . . . [The statute contains more examples which may be appropriate depending on the facts of the case.]
The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
a) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
b) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.