The Americans With Disabilities Amendments Act of 2008 (ADAAA), which became effective on Jan. 1, 2009, made a number of significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA). It also directed the Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The EEOC issued a Notice of Proposed Rulemaking on Sept. 23, 2009. The final regulations were published in the Federal Register on March 25, 2011.
The ADAAA specifically states that the definition of disability should be interpreted in favor of broad coverage of individuals. Few cases have been decided yet under the ADAAA, but two courts that recently have considered the quantum of evidence required to establish a disability have both focused on a comparison of the plaintiff to an average person in the general population, as set forth in the final regulations.
On Dec. 21, 2011, in Allen v. SouthCrest Hospital, the 10th Circuit affirmed summary judgment for the defendant, finding no disability where the plaintiff suffered migraine headaches that caused her to “crash and burn” at the end of the day. The plaintiff alleged that her migraine headaches substantially limited her ability to care for herself and to work.
As to the ability to care for herself, she argued that, while most of the time she could get up and go to work, there were times when she immediately took medication after returning home that made her sleep. She claimed she could do nothing other than go straight to bed; thus, she had no ability to care for herself. The court found these allegations, without more, were insufficient to show that she was “substantially limited” in the major life activity of caring for herself, and that she had failed to present evidence from which the court could examine the difference in her experience from that of the average person in the general population.
As to her alleged limitation in working, the evidence showed that Allen suffered from migraine headaches only when she worked for one doctor. In ruling against her, the court noted that a plaintiff’s reliance on an alleged limitation of the ability to work should be considered only as a last resort, and that a plaintiff must continue to show that he or she is limited from performing a class or broad range of jobs, not just difficulty in working for one supervisor or in one position.
On Jan. 4, 2012, in Molina v. DSI Renal, Inc., the District Court for the Western District of Texas denied summary judgment for the defendant, finding that the plaintiff was disabled although she had testified that her back pain “did not impact her ability to do any of her activities and did not change the way she did her household activities or how she worked.”
The court found “the fact that Molina learned to work through her pain to continue performing her regular tasks “does not necessarily preclude her from being considered disabled.” In so holding, the court noted evidence that Molina’s condition affected her in the activities of sleeping, sitting, standing and lifting, and that she required medication for pain. In its analysis, the court relied on EEOC guidance under the ADAAA, stating that courts should "compare the condition under which the individual performs the major life activity" or "the manner in which the individual performs the major life activity" as compared to the general population.
The court noted that this comparison could include the pain suffered by the claimant while performing the major life activity. Further, EEOC regulations state that an ability to function despite the physical impairment does not mean an individual is not disabled, and an impairment under the ADAAA need not restrict or significantly restrict the individual from performing a major life activity in order to be considered "substantially limited." Therefore, the fact that the plaintiff testified she "learned to tolerate the pain" was irrelevant. Finally, the fact that the plaintiff’s pain medication decreased the pain did not defeat coverage under the ADAAA, because mitigating measures may no longer be considered.
As shown by these decisions, a plaintiff must demonstrate only that he or she suffers an impairment in comparison with an average person in the general population, considered without reference to any mitigating measures. Employers can expect that plaintiffs’ counsel will soon be prepared to do so.