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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.

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.

Senior Editor

Mary Swanton

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