by Burton J. Fishman Fortney & Scott, LLC
Last week, while everyone’s attention was focused on a potential meltdown of the U.S. economy and whether or not the first presidential debate would actually take place, a bunch more of your employees were given federal protection against disability discrimination. On September 25, 2008, President George Bush signed the ADA Amendments Act into law. The new law will significantly expand the number of employees who can be considered disabled but will do little to bring clarity to this complicated law. The amendments become effective January 1, 2009.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act
Overview of why the ADA was amended
One of the abiding problems with the Americans with Disabilities Act (ADA) is that it was a congressional compromise without a political resolution. As a result, nearly every important issue was avoided. “Disability” wasn’t defined; it was described with even more undefined terms. In the end, just who was “a qualified individual with a disability” and who was “substantially impaired” in “a major life activity” was pretty much anyone’s guess.
It was left to a corps of usually resentful judges to try to give meaning to Congress’ ambiguous language — an outcome that wasn’t likely to please many. And that is what has occurred. Both the disabled community and the business community have been left in a state of confusion because each new judicial ruling provided new and different guidance. Even when a U.S. Supreme Court ruling offered finality, it was a contingent sort of finality because each new opinion often served as the basis for the next appeal.
At the core of the complaints regarding the judicial interpretations of the ADA is that the courts have misconstrued and narrowed the law in ways not intended by Congress. Among employers, the most often heard criticism is that despite several Supreme Court decisions, no one is sure who is disabled or what regarding someone as disabled means.
From adherents for the disabled, one heard that and a good deal more: Mitigating measures shouldn’t matter in determining disability, the definition of “disability” should be broad enough to ensure that sufferers of chronic disease are automatically included, the treatment of an employee “regarded as” being disabled is the issue, not whether the ailment involved constitutes a disability, and more. The ultimate goal for adherents is to limit courts’ ability to interpret (i.e., narrow) the scope of the law.
This debate has been waged with increasing intensity over the last few years as the impact of the Supreme Court’s rulings has had the effect of significantly curtailing the number of disability claims.
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What the amendments don’t change
The ADA Amendments Act urges that the term “substantially impairs” shouldn’t be interpreted strictly. For example, colleges and universities won’t be required to provide accommodations that would “fundamentally alter” the nature of the program or diminish academic requirements.
What the amendments would change
Mitigating measures. The clearest and perhaps most significant change is that “mitigating measures” (medication, prostheses, and similar ameliorative benefits) are not to be considered when determining if someone is disabled. The only exceptions are eyeglasses and contact lenses.
This provision “overturns” the Supreme Court’s ruling in the Sutton trilogy of cases, which established that an individual was assessed in his present condition. This law change will considerably expand the number of individuals who would qualify as disabled. Someone with diabetes, for example, would be considered disabled without having to demonstrate that at a given moment in time, the disease was or wasn’t controlled by medication.
Nonetheless, the issue of a meaningful accommodation remains unresolved. Take, for example, an employee who uses medication for seriously elevated high blood pressure. He may now be considered disabled even though he has no manifested impairment when medicated.
How does that implicate either the ADA or one’s job? Under the old law, if your medication was ineffective, that was your present condition and you would have been considered disabled if the condition was a “substantial impairment.” It’s unclear how that would change under the amended law.
Major life activities. Another open question in the ADA is what constitutes a major life activity in the context of a disability. The Supreme Court ruled that to constitute a disability, an impairment couldn’t just affect one’s job but rather had to affect one’s ability to perform the common functions of daily life. The Court was concerned that people would use the inability to perform a job to secure a preferred job, presumably “jumping to the head of the line.” That problem doesn’t appear to concern Congress.
The proposed amendment instructs the courts to consider the bill’s “Findings” and “Purposes” sections, which advise that “major life activities” and other terms in the ADA don’t need to be interpreted strictly and that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” To that end, the amendment includes a nonexhaustive list of activities that constitute major life activities. If you can’t perform one of the activities, you are automatically considered disabled. Here’s the list:
- caring for oneself; · bending;
- performing manual tasks;
- speaking;
- seeing;
- breathing;
- hearing;
- learning;
- eating;
- reading;
- sleeping;
- concentrating;
- walking;
- thinking;
- standing;
- lifting;
- communicating; and
- working.
“Working” is the most controversial because it can include a multitude of activities not required in any other context.
Major bodily functions. Congress also created a subset of major life activities called “major bodily functions.” These functions include: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Note that there is no requirement that the functions have any relation to the ability to work, and some are wholly unrelated to it. Presumably, if these functions were substantially impaired, that would constitute a disability.
The reference to “immune system” and “normal cell growth” indicates an intent to include as disabled those with HIV or cancer, without regard to manifestation of the disease. It’s also the impetus for an amendment stating that any ailment that would be a disability if it were to manifest is still considered a disability if it is in remission or is currently nonepisodic. It isn’t entirely clear that those who regard themselves as “cured” or “treated” will want to be deemed permanently disabled. This amendment appears to make “disability” a continuous state without reference to the ailment.
Regarded as. This prong of the ADA has long been considered the most confusing aspect of a generally confusing law. Many lawsuits allege that the employee is both disabled and regarded as disabled, even though the claims can’t both be sustained. The courts have tried to bring some clarity to the situation by requiring that one be regarded as having a disability as defined by the ADA to state this claim.
An issue that has split the courts is whether someone who has been regarded as disabled must be accommodated. The amendment makes clear that someone is regarded as being disabled because of the discriminatory treatment he has suffered as a result of the misperception, without regard to whether the ailment putatively involved constitutes a disability. The new law also states that there need not be an accommodation for “regarded as” individuals and that no “transitory” impairment (lasting less than six months) is a disability.
Commentary
There’s no doubt that the realm of “the disabled” will be significantly enlarged by these amendments. If employment discrimination laws are to protect wrongs against “discrete and insular minorities,” then our understanding of the term must change.
Americans with Disablities (ADA) Compliance Manual
Part of this expansion is caused by the law’s silent but pervasive refusal to recognize the benefits of medical science. Under the amended law, one must always be “disabled” by diabetes, epilepsy, or cancer. Can there never be a cure? What if a cancerous kidney is successfully removed? Is the patient disabled? Perhaps having only one kidney is a disability, but those who offer kidneys for transplants are heroes, not disabled victims. And why are glasses an allowable “mitigation” and not hearing aids? Such an artificial distinction reveals these amendments as little more than a grab bag, stuffed with what could be grabbed, without much medical or scientific basis.
However, if the primary goal of the amendments was to keep the courts at bay, this is a failed effort. The subsuming issue of what constitutes a “substantial impairment” remains to be construed by the courts, as do the constituent elements of a “reasonable accommodation.” Judges will continue to resent being asked to make sense of Congress’ language in the ADA, as amended.
Burton J. Fishman is of counsel to Washington, D.C.’s, Fortney & Scott, LLC, and is recognized as one of the nation’s leading authorities on workplace law. A former deputy solicitor of the U.S. Department of Labor, his experience extends to the full spectrum of employment and labor matters.