In September 2008, the ADA Amendments Act of 2008 (ADAAA) was passed with the intent of broadening the meaning of the term “disability” and expanding coverage under the Americans with Disabilities Act (ADA) to a larger percentage of the workforce. The ADAAA retained the core definition of “disability” (defined, in part, as “a physical or mental impairment that substantially limits one or more major life activities”) but for the first time defined the term “major life activity,” at least through examples.
Using regulations set out by the Equal Employment Opportunity Commission (EEOC) as its guidepost, Congress set forth a nonexclusive list of qualifying major life activities that includes caring for oneself, performing manual tasks, concentrating, thinking, and working, among other things. Lawmakers also added a new list of “major bodily functions” that constitute major life activities. Through references to those lists, the ADAAA was intended to provide clarity and broaden coverage.
It’s becoming increasingly apparent, however, that many interpretive issues remain unanswered. Recent court decisions indicate that the new definition of major life activity may not broaden the definition of disability as much as initially thought.
Driving not a major life activity
In April 2009, the U.S. Court of Appeals for the Seventh Circuit held that a nurse with attendance problems resulting from driving-induced panic attacks couldn’t file suit under the ADA. Marsalette Winsley was a public health nurse whose job required her to drive to clients’ homes and evaluate their health conditions. After an automobile accident, however, she was diagnosed with posttraumatic stress disorder, which caused her to have panic attacks every time she got in a car.
Winsley’s doctor restricted her to minimal driving, only to and from work. Her employer insisted that she had to be able to drive two hours per day “as required by her position.” Winsley resigned and filed a lawsuit alleging her employer failed to accommodate her under the ADA. Upholding the district court’s dismissal of the case, the Seventh Circuit held that her claim failed because driving isn’t a major life activity under the ADA.
Although the court analyzed Winsley’s claim under the ADA, its rationale strongly suggests that the outcome would be identical under the ADAAA, which became effective January 1, 2009. The court found that driving is distinguishable from the nonexclusive list of major life activities in the EEOC regulations (which are now part of the ADAAA statutory text). The court noted that in contrast with driving, “the listed activities are so important to everyday life that almost anyone would consider himself limited in a material way if he could not perform them. This is not the case with driving. In fact, many Americans choose not to drive and do not consider the quality of their lives to have been diminished by their choice.”
Moreover, the court concluded that the listed major life activities, unlike driving, do not depend on where a person lives. It observed that “Manhattanites drive only rarely, while residents of more sparsely populated areas of our country rely heavily on their automobiles for transportation.” Finally, the court noted that while the listed activities protect fundamental rights (for example, the right to care for oneself, the right to think, and the right to work), no one has the right to drive.
Based on those observations, the Seventh Circuit concluded that Congress did not intend for driving to constitute a major life activity. In so holding, it became the fourth circuit to hold that driving isn’t a major life activity. No circuit has held otherwise to date.
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But wait a minute . . .
It’s now clear in the Seventh Circuit that the inability to drive, in and of itself, isn’t a substantial limitation on a major life activity under the ADA. What isn’t so clear, however, is whether the inability to drive is evidence of a substantial limitation on another recognized major life activity.
For example, in this case, the court explained that the inability to drive could affect the recognized major life activity of working. According to the court, Winsley would have a qualifying disability under the ADA if her inability to drive impaired her ability to perform “a class of jobs or broad range of jobs in various classes.” But because she presented no evidence to support that argument and alleged only that she was impaired from driving, she didn’t meet her burden of establishing a disability under the ADA. Winsley v. Cook County Department of Health (7th Cir., April 22, 2009).
Although this decision represents a clear victory for employers operating in the Seventh Circuit, employers should still exercise caution before taking adverse action against an employee whose medical condition renders her unable to drive. The case highlights some steps you should take to ensure compliance with the ADA when an employee requests an accommodation based on an inability to drive.
This employer avoided liability in part because the nurse couldn’t perform the essential job function of driving two hours a day. Employers can likewise avoid liability by reviewing and revising your job descriptions to make sure that essential job functions are stated accurately and completely.
The Seventh Circuit’s decision indicates that despite the best efforts of Congress, the ADA is still murky about what constitutes a “major life activity” and therefore what qualifies as a “disability.” When an employee requests an accommodation, examine all of the potential major life activities affected by her purported impairment. For difficult areas of interpretation, consider consulting experienced employment counsel.