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Putting the ADA Back on Track

When Congress passed the Americans with Disabilities Act in 1990, it intended to provide ”equally effective opportunities” to individuals with disabilities.

The ADA’s goal was to prohibit disability discrimination and require reasonable accommodation in employment, public accommodations, and public services.

A ”disability” is defined in the ADA as any physical or mental impairment that substantially limits a major life activity, having a record of such an impairment, or being regarded as having such an impairment. Most experts would agree this definition on its face is a reasonable and broad one.

Beginning in 1999, the U.S. Supreme Court decided several landmark ADA cases that narrowly interpreted the ADA’s definition of ”disability.” The high court announced two key principles. First, an individual who can control or mitigate an impairment with medication or other corrective measures will not be deemed disabled. Second, unless an impairment ”prevents or significantly restricts” the more important activities of daily living, the individual is not disabled.

As a result of the Court’s interpretations, many individuals with conditions commonly thought to be disabilities have had little, if any, protection under the ADA. Conditions such as epilepsy, diabetes, cancer, and many others can be controlled with medication, may be in remission, may have been eliminated through surgery, or do not interfere with the individual’s ability to live a normal life. Under the ADA, they have not qualified as disabilities.

Therefore, it has been possible for discrimination against such individuals to occur, many times with impunity. Much to their surprise, many claimants with what were commonly believed to be disabilities lost their cases because they could not establish an ADA ”disability.” Such cases often did not even reach the issue of whether discrimination occurred or reasonable accommodation had been refused.

For some years now, the disability rights community has voiced its concern that the ADA needed to get back on track with the original intent of the ADA. One of the proposals initially considered by Congress [the ADA Restoration Act] would have resulted in the opposite extreme. It would have simply defined a disability as ”any impairment,” regardless of how minor it is or how long it lasts. It would have covered far more individuals than was intended by the ADA.

Fortunately, Congress was willing to give the disability rights and employer communities an opportunity to craft a compromise bill. In September, the final version of their jointly drafted amendment to the ADA was passed by both the House and the Senate and signed by President Bush. Called the ”ADA Amendments Act” or ”ADAAA,” it becomes effective on Jan. 1, 2009.

Under the ADAAA, the basic definition of ”disability” remains the same, as do many other provisions of the ADA. However, clarification of how the term ”disability” is to be interpreted has been added. Mitigating measures may no longer be taken into account in determining if a disability exists [but they may be considered to determine if an accommodation is needed]. In addition, whether an impairment is “substantially limiting” is to be construed in a liberal manner.

What can we expect? More individuals with significant impairments will be covered as disabled. More requests for accommodation are likely to be made. ADA charges and lawsuits are likely to increase. More ADA litigation will be decided on whether discrimination has occurred or whether reasonable accommodation has been offered and not on the definitional issue of whether a “disability” exists.

The ADAAA is also a prime example of bi-partisanship and collaborative efforts. Congress should be commended for allowing private sector stakeholders to work out a mutually satisfactory balance of interests. Once the disability and employer communities agreed to the ADAAA language, both houses of Congress and the president signed it into law in less than two months and with almost unanimous approval.