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At Age 20, ADA Still Hasn’t Fully Matured

Earlier this week, the Americans with Disabilities Act (ADA) passed a major milestone when it turned 20 years old. Like most 20-year-olds, it (1) didn’t get this far without some growing pains and (2) still has a ways to go before reaching full maturity. Let’s take a look back at where the law began, how it has grown and changed over the years, and what might be on the horizon for the youngest federal employment discrimination statute.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act

Early promise
When President George H.W. Bush signed the ADA into law on July 26, 1990, its future was so bright. President Bush described his signing of the law as “taking a sledgehammer to a wall that had for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp.” Democrats and Republicans alike described the infant civil rights law as “historic,” “landmark,” and an “emancipation proclamation for people with disabilities.”

But over the years, the ADA has experienced more than a few growing pains. In 1991, when the ADA was still but a baby, the Equal Employment Opportunity Commission (EEOC) issued regulations that were intended to guide employers in complying with the law’s requirements, many of which bore no resemblance to any of the employment discrimination laws with which employers had previously dealt. Unfortunately, the EEOC’s regulations served more to confuse employers than to provide any clear guidance.

One of the biggest problems was that the regulations created overwhelmingly detailed and convoluted standards for employers to apply in determining whether an employee or applicant was disabled. Think of the regulations as a nitpicky parenting book: The agency’s intent may have been good, but its execution was lacking. As a result, employers could easily become so bogged down in the minutiae that they never reached the point of considering what types of accommodations might resolve the employee’s concerns.

More growing pains
As the Americans with Disabilities Act was growing up, courts struggled alongside employers to define who should be considered a “disabled individual.” In most lawsuits that were filed, the first line of defense was that the employee wasn’t disabled at all and therefore wasn’t entitled to the ADA’s protections. Most federal appeals courts eventually started developing uniform standards to be applied in determining the existence of an ADA-recognized disability. Employers may not have had all the answers, but with the help of those court decisions, they at least seemed to have gotten a grasp on what they should be doing to comply with the Act.

But that started changing in 1999, when the U.S. Supreme Court issued the first of many decisions that severely restricted the types of impairments that could be considered disabilities under the ADA. Its first ruling held that so-called “mitigating measures” (such as medication, prosthetics, hearing aids, and other auxiliary devices) were to be taken into account in determining whether an individual was disabled.

If an employee’s use of mitigating measures reduced or eliminated an impairment’s impact on her major life activities, the court reasoned, then (1) the employee’s activities weren’t substantially limited and (2) therefore, the individual wasn’t disabled. Also in 1999, the court imposed a strict new standard for determining whether an individual was “regarded as” substantially limited in the major life activity of working. Both of those rulings contradicted nearly all previous rulings from the federal courts of appeals.

Americans with Disabilities (ADA) Compliance Manual

Tight limits for teen years
By 2002, the ADA was approaching its teen years. In that year, the U.S. Supreme Court issued its most severe restriction on the law’s application. First, it ruled that the term “major life activities” should be defined as “activities that are of central importance to most people’s daily lives.” Second, it interpreted the term “substantially limits” to mean prevents or severely restricts. It was as if the Court was trying to rein in the prepubescent ADA before it had a chance to develop into an unruly teenager.

Most ADA experts and disability advocates agreed that the Court’s rulings had gone too far. By this time, however, the law’s protections had been trimmed so much that there was no easy fix. It took six years, but Congress finally passed the ADA Amendments Act (ADAAA) in 2008. Fittingly, the ADA was 18 years old at that time.

18th birthday present: ADAAA
The ADAAA undid all of the U.S. Supreme Court’s decisions that had made it so difficult for employees to establish that they were entitled to the ADA’s protections. First, the legislation made it abundantly clear that the ADA was no longer to be interpreted in a strict, miserly fashion as the Court had done. It instructed courts and employers that they were supposed to be focusing not on whether an individual was disabled but on preventing discrimination and accommodating disabilities.

The main substantive changes, however, were to the definition of the term “disability.” Those changes included:

  • Redefining “major life activities” to include not only traditionally recognized activities (such as walking, seeing, hearing, and speaking) but also major bodily functions such as the cardiovascular, endocrine, or nervous systems. This change is potentially huge because it takes the focus off of how an impairment restricts an individual’s activities.
  • Instructing the EEOC to define “substantially limited” more expansively.
  • Clarifying that the existence of a disability is to be determined without considering the effect of most mitigating measures (other than ordinary prescription glasses).
  • Providing that impairments that are episodic or in remission are considered a disability if they would substantially limit a major life activity when active.

The ADAAA also clarified that an employee may be “regarded as disabled” regardless of whether the perceived impairment would substantially impair or is perceived to substantially impair a major life activity.

ADA Compliance Virtual Summit: Advanced Issues and Challenges for Employers

20-something and still changing
So that brings us to today. On Monday, the ADA turned 20 years old. But even though it is old enough to vote, it has not quite reached the level of a mature adult.

The EEOC has been struggling with its own growing pains since Barack Obama took office, and one result has been an unexpected delay in the issuance of final regulations interpreting and implementing the ADAAA. The current plan is for those regulations to be issued by the end of the year. Perhaps when that happens, the ADA will finally have moved past its growing pains and taken its place alongside Title VII of the Civil Rights Act of 1964 (granddaddy of all discrimination statutes) as a full-fledged discrimination law.

In the meantime, employers need to remember that the ADAAA’s main purpose was to divert their efforts away from determining whether an individual is disabled toward finding a way to accommodate and prevent discrimination against them. By turning your focus in the right direction, you should be able to resolve most problems before the situation escalates into an EEOC claim or lawsuit.

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