The Americans with Disabilities Act of 1990 (“ADA”) has created its fair share of hurdles for employers and legal professionals alike. Of course, the purpose of the ADA - to prevent workplace discrimination of individuals with disabilities and to make more available accommodations for those individuals – is appropriate enough. Unfortunately, from inception, the law has been so encumbered with the breadth of its own language and bewildering definitions that even the courts have wrestled with determining what constitutes a disability under the ADA and what accommodations can be reasonably required of employers. Thanks to a sweeping new addition to the ADA with a catchy title, The ADA Amendments Act of 2008 (“ADAAA”), made effective January 1, 2009, Congress may have successfully simplified the ADA analysis, but only by redoubling the employer’s burden under the ADA.
The ADAAA’s answer to demystifying the ADA can be summed up succinctly in this statement to employers: assume they are disabled. In fact, in the purpose section of the act, the ADAAA states, “It is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis”. Shed of its legalese, this purpose statement reveals that the ADAAA seeks to fast forward the conversation regarding whether or not an individual is disabled, and move directly to the conversation regarding whether or not there has been discrimination.
Of course, in a theoretical world, such expeditious thinking would appear to make good sense. However, in the real world of managing a business, and certainly in the realm of employment litigation, soft-pedaling the issue of whether or not an employee is disabled will only increase costs of compliance and encourage more frivolous discrimination claims. Unfortunately the problem does not stop here either. Consider this: prior to passage of the ADAAA, far and away the majority of ADA discrimination claims lost on summary judgment because it was concluded the Plaintiffs were not disabled. At a recent legal seminar, John Fitzgerald, Deputy Director of the District Office of the EEOC in Atlanta, predicted that in the new world of the ADAAA, 90% of individuals bringing claims will be considered disabled. Thus, in addition to increased costs of compliance and a spike in the number of discrimination claims filed, employers can expect lengthier and more costly periods of litigation.
Without bogging down too much in the minutiae of the law, it is worth considering some of the highlights of the ADAAA to understand how it so broadens the application of the ADA and why this will be such a problem for employers. The ADA originally defined “disability” as either 1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual, 2) a record of such impairment, or 3) being regarded as having such an impairment. While this core definition remains intact under the ADAAA, two key holdings of the United States Supreme Court which interpreted the original definition of the ADA, Sutton v. United Airlines, Inc. (1999) and Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002), have now been reversed.
In Sutton v. United Airlines, Inc., the plaintiffs were severely myopic twin sisters who had uncorrected vision of 20/200 or worse. However, with corrective lenses, they functioned identically to individuals without a similar impairment. Ultimately, the Court held that the twins were not disabled within the meaning set forth in the ADA, finding that the determination of whether an individual is substantially limited in a major life activity must factor any mitigating measures (i.e., their glasses). Thus, as a result of Sutton and its companion cases, many people with significant impairments were not disabled under the ADA, given mitigating or corrective measures. However, with passage of the ADAAA, mitigating measures will no longer be considered. Thus, under the new law, the twins in Sutton would be considered disabled because their impaired vision would be considered without regard to the ameliorative effects of their glasses. By further illustrations, your hypothetical employee with a hearing aid can now be considered disabled, as can employees managing chronic medical issues with medication.
In Toyota Motor Mfg. v. Williams, the Supreme Court found that an individual suffering from carpal tunnel syndrome and related impairments, who brought suit against her former employer for failing to provide her with a reasonable accommodation for her assembly-line job, was not disabled under the ADA. They ruled that the lower court was incorrect in analyzing a limited class of manual tasks when making the determination of whether the plaintiff was disabled from performing the major life activity of work, but held rather that the court should have analyzed whether the impairments prevented or restricted her from performing tasks that are of central importance to most people’s daily lives. Now, in the new environment of the ADAAA, the question is not whether a labor market survey can identify potential jobs an individual with impairment could perform. The question is simply whether or not the individual is disabled from working in their current job role. Thus, any employee’s complaint of inability to perform their job or meet productivity standards could imply ADA liability for the employer.
Another substantive change under the ADAAA, is the lengthening of the list of ‘major life activities’. Under the ADA, this list included: caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Now, under the ADAAA, the list has become notably more expansive. ‘Major life activities’ now include: caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Taking a moment to consider the implications such a laundry list, it becomes clear that virtually any activity can argued to be a major life activity. Thus, from a practical perspective, medical issues ranging from TMJ to insomnia can now be argued to be a disability which limits a major life activity.
The clear effect of the ADAAA is that more employee medical issues and impairments will be now considered “disabilities” under the ADA and it will be more difficult to dispose of frivolous claims of disability discrimination. Of course, forthcoming regulations from the EEOC will provide greater insight into the new law, as well as interpretive case law which will follow in coming years. However, employers and defense attorneys are already bracing for what will surely be a more burdensome involvement with the ADA. To that end, employers are encouraged to participate in front-end compliance and claim avoidance more than ever. This means that if there is any question regarding whether an individual is disabled, it is safest to assume they are disabled and move directly into the ‘interactive process’ in which reasonable accommodations are discussed with the employee. Moreover, it will be even more crucial for employers to closely tailor job descriptions, make clear essential functions and focus record keeping and employee reviews on performance and conduct. Finally, the new breadth of the ADA will mean greater overlap with other medical leave and disability laws such that virtually any FMLA or Workers’ Compensation claim can now imply further potential liability under the ADA. Thus, in the environment of litigation, it will be more crucial than ever that claim settlements of any workplace medical leave or disability claims incorporate a comprehensive general release.