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Disability Redefined

Thanks to the Supreme Court, it's been easy for employers to defend lawsuits filed under the Americans with Disabilities Act (ADA). In a series of decisions starting in the late 1990s, the court set a high bar for plaintiffs to prove they qualify for protection under the act. In fact, employers have prevailed in more than 90 percent of all ADA cases, with the majority dismissed on summary judgment.

But all that is about to change. On Jan. 1, 2009, the ADA Amendments Act (ADAAA) takes effect, overturning the high court limitations on what constitutes a disability and thereby vastly expanding the number of people who can qualify as disabled.

That means employers are faced with two potentially budget-busting propositions: Many more employees may be entitled to "reasonable accommodations" that enable them to do their jobs despite their disabilities. And those cases that end up in court when accommodations are denied or a discriminatory employment action is alleged are much more likely to go to trial.

"Employers need to be aware that there may be additional litigation, particularly while the courts are struggling with what the new amendments mean, and there may be pent up demand because of the frustration disabilities groups had with prior court decisions," says Laura Franze, a partner at Hunton & Williams.

"And we are almost certainly going to see an increase in the number of dollars it takes to defend a case because the cases are much less likely to be dismissed on summary judgment," she says.

Broad Coverage

But as dire as the implications of the ADAAA may seem, it actually represents a compromise forged by disabilities groups and business organizations working with congressmen and senators on both sides of the aisle. The original ADA Restoration Act, introduced in 2007, eliminated the requirement that plaintiffs prove their impairments "substantially limit" one or more "major life activities" to qualify for accommodation or protection under the Act.

In the compromise ADAAA bill, Congress kept the "substantially limits" language but directed the EEOC to draft new regulations requiring a less demanding standard for establishing what constitutes a "substantially limiting" physical or mental impairment. It says the term disability "shall be construed in favor of broad coverage of individuals" and clarifies that an "impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."

According to Francis Alvarez, a partner at Jackson Lewis, the changes in coverage will be very significant. "But in the final version of the bill, at least to some extent, someone has to prove that their physical or mental impairment substantially limits a major life activity," he adds.

However, Congress included a list of "major life activities" that would seem to allow almost every employee to claim a disability. The ADAAA specifies eating, sleeping, learning, reading, concentrating, thinking and communicating as among the major life activities. It also includes bodily functions--including digestive, bladder, reproductive and brain functions--as among the major life activities of which substantial limitation constitutes a disability.

This list has ramifications throughout the employment process. For example, when hiring for a maintenance position, an employer may have to provide assistance in the application process to an applicant who is illiterate, says Victoria Zellers, a member at Cozen O'Connor.

"With reading being a major life activity, if reading is not an essential function of the job, you can see how that would change the application process," Zellers says. "There are a lot of ways that managers, supervisors and HR professionals are going to have to get up to speed on these changes."

Regarding 'Regarded As'

Among the most crucial of those changes is a lowered standard for proving discrimination against an individual "regarded as" having a disability.

In those cases, the employee no longer has to prove that the perceived impairment would substantially limit a major life activity. That is expected to spark a sharp increase in litigation claiming employers discriminated against plaintiffs they regarded as impaired.

"'Perceived as' cases weren't getting a lot of traction because the plaintiffs could not show that the employers thought that they were substantially limited," says Myra Creighton, a partner at Fisher & Phillips. Now they no longer need do so.

But there is some good news for employers on the issue of "regarded as" claims. The new act clarifies that such claims cannot be based on transitory impairments expected to last less than six months. And it relieves employers of providing accommodations for employees "regarded as" disabled.

"In the final version of the bill, we got clarification that employers are not required to provide reasonable accommodations for people merely regarded as being disabled," Alvarez says. "That eliminates a split in the circuit courts on that issue, which was a source of frustration and concern for many employers."

Congress also overruled the Supreme Court's 1999 decision in Sutton v. United Airlines, which allowed employers to consider mitigating measures--such as drugs taken to control depression--when determining whether an individual qualified for ADA protection. Now they must ignore the impact of all mitigating measures except eyeglasses and contact lenses.

Challenges Ahead

There is no indication yet from the EEOC on when the new regulations expanding the definition of disability will be ready. In the meantime, "Employers are going to be out there with no standard, other than it isn't what it used to be," Creighton says. "The reality is, be extraordinarily cautious after Jan. 1 until the EEOC comes out with some definitional guidance on this stuff."

In the meantime, employment attorneys are advising in-house counsel to retrain supervisors and managers on how to recognize people who may qualify under the expanded coverage in the amended act. They also recommend expanded training on how to engage in the required interactive process to determine if a reasonable accommodation is possible that will enable the employee to work despite his impairment. With many more employees likely to qualify for accommodation, preparing now is critical.

"The devil is in the details because you may have a circumstance where it is not clear that an accommodation will work or if an accommodation is even feasible," Franze says. "So the people on front line will be faced with some difficult decisions in the months ahead."

Senior Editor

Mary Swanton

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