Know Your Rights: New ADA Amendments Offer Real Protection

Know Your Rights
New ADA Amendments Offer Real Protection
Sometimes laws, drafted with the best of intentions, are interpreted by courts so that they fail to attain their remedial objectives. This is particularly disappointing when courts narrowly construe anti-discrimination laws.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

The Americans with Disabilities Act (ADA) is an excellent example of a law which never achieved its potential. The ADA was passed in 1990 to help eradicate discrimination against the disabled. Yet the Supreme Court, in decision after decision, weakened the ADA's protections to the point where the law offers very little actual protection to employees (or job applicants).

Last month, the ADA was amended to allow it to achieve its promise. In a nearly unanimous vote, Congress passed the new amendments after they won the broad support of a diverse coalition of civil rights and business groups. Today's column analyzes these latest changes, which go into effect on Jan. 1, 2009.

Lost Opportunity

The ADA defines "disability" as applying to an individual who: has a physical or mental impairment that substantially limits one or more major life activities; is regarded as having such an impairment; or has a record of such impairment. The key to securing the ADA's protection is satisfying this definition of "disability."

Unfortunately, the Supreme Court has so narrowly construed the ADA's definition of "disability" that, according to one study, plaintiffs in 2004 lost 97 percent of the ADA employment discrimination claims that went to trial.

In 1999, for example, the high court held that plaintiffs are not "disabled" (and thus not entitled to ADA protection) if they use certain "mitigating measures" to lessen the effects of their impairment. Thus, plaintiffs who relied on medication, prosthetic limbs or hearing aids, etc. failed to satisfy the Supreme Court's definition of "disability." Accordingly, employees suffering from severe hearing loss, epilepsy, muscular dystrophy, cancer, diabetes, to name just a few examples, were generally deemed to lack protection under the ADA.

Last month's ADA amendments extend the reach of the ADA by defining disabilities "without regard to the ameliorative effects of mitigating measures." In addition, in another major departure from the ways of old, impairments which are episodic, or in remission, will now qualify as a disability if they would substantially limit a major life activity when active.

The amendments also provide many new examples of "major life activities." Now a "disability" includes impairments which substantially impact on the following revised list of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also, the definition of "major life activity" has been expanded to include "operation of a major bodily function" such as: the immune system, normal cell growth, digestive, bowel, bladder, neurological brain, respiratory, circulatory, endocrine and reproductive functions.

Removed Burden of Proof

Another positive development pertains to the "regarded as" prong of the definition of "disability." Often employees (or job applicants) are discriminated against because an employer regards them as being disabled. In the past, a plaintiff claiming discrimination because he or she was "regarded as" having an impairment would also have to demonstrate an actual impairment which substantially limits a major life activity. No longer. Now, such plaintiffs are freed from that burden of proof provided their impairment is neither minor nor transitory (lasting six months or less).

As for how the courts should construe the ADA going forward, Congress took no chances by very clearly stating its intent. The amendments expressly state that the ADA's definition of "disability" is to be construed "broadly" and the term "substantially limits a major life activity" is no longer to be interpreted by the "strict and demanding standard" previously applied by the Supreme Court.

Federal employees, unlike their counterparts working for the city and the state, are not covered by the ADA. However, they too received some good news. The amendments ensure that the definition of "disability" under the Rehabilitation Act of 1973 (applicable to Federal employees) conforms to the more liberal definition under the new ADA. Perhaps now, at long last, the disabled will have the legal protection Congress intended for them.