The ADA Amendments Act of 2008: Who Isn't Disabled? - Articles

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Posted by: Edward Phillips on Jan 29, 2009

Journal Issue Date: Feb 2009

While most of the nation wondered if and when the federal government would intervene in the crisis in financial markets, on Sept. 25, 2008, President Bush signed the ADA Amendments Act of 2008,[1] which explicitly rejects a line of Supreme Court decisions which had, over the course of years, narrowly interpreted the reach of the Americans with Disabilities Act.

The act, which became effective Jan. 1, represents a compromise between those representing disability interests and the business community, as evidenced by its endorsement by the U.S. Chamber of Commerce and a number of individual trade organizations. It replaced the proposed ADA Restoration Act, which was gathering steam after its introduction in 2007, and would have treated all "impairments" as disabilities. "Impairments" were likewise generously defined as "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more ... body systems" or "any mental or psychological disorder."[2]

In the end, both sides gave up ground, and the ADA Amendments Act was passed with little serious opposition. The results? The requirement that an impairment "substantially limit" a "major life activity" has been retained, but the meaning of substantial limitation has been modified. The act requires that courts consider its "Findings and Purposes" sections, which state that EEOC regulations "defining the term 'substantially limits' as 'significantly restricted' are inconsistent with congressional intent, by expressing too high a standard."[3] The "Purposes" section essentially directs the EEOC to revise the "substantially limits" definition to an unspecified, more plaintiff-friendly standard. It expressly rejects the Toyota Motor Mfg., Kentucky Inc. v. Williams[4] standard that had held "to be substantially limited in performing a major life activity ... 'an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives."[5] The "Purposes" section also conveys the intent of Congress that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."[6]

Congress codified the EEOC's illustrative list of "major life activities," adding several new activities in keeping with case law developments. Now statutory major life activities include caring for oneself, standing, lifting, bending, performing manual tasks, speaking, seeing, breathing, hearing, learning, reading, concentrating, thinking, communicating, eating and sleeping. "Working," a major life activity already ensconced in the EEOC regulation but which some employers had hoped would some day disappear, was incorporated into the list.[7]

On the upside for employers, the House Report indicated that the act was not intended to change the EEOC's regulation relating to "working" as a major life activity; thus the requirement that an employee be substantially impaired with respect to a broad range or class of jobs (rather than a single job) remains.[8]

The act adds a new subset of major life activities called "major bodily functions," which includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. Any condition or disease that substantially limits one of these bodily functions is automatically a disability.[9] This reverses numerous cases that had held that such diseases as HIV infection, Hepatitis B and cancer did not qualify for ADA protection because the individual was not substantially impaired in a major life activity.

A disability is now determined without regard to ameliorative effects of mitigating measures overruling Sutton v. United American Airlines Inc.[10] Now, with the exception of eye glasses and contact lenses, the determination of whether an individual is disabled will be made without regard to the ameliorative impact of medication, medical supplies, equipment or appliances, prosthetics, hearing aids, mobility devices, oxygen therapy, use of assistive technology, auxiliary aids or services, and learned behavioral or adoptive neurological modifications.[11] Moreover, a disease or impairment that is in remission is a disability if it would substantially limit a major life activity when active.[12]

For example, an employee who received cochlear implants as a child and has adapted well, but who would be severely hearing impaired without her implants, is judged by how she would hear without the implants. An individual suffering from depression that is completely ameliorated by medication is disabled if he would be severely depressed without the medication. Moreover, a disease such as lung cancer which is in remission and without current effects would be a disability because it could reoccur. The net of ADA coverage now cast by Congress is broad indeed.

Perhaps the most significant change under the act is in the "regarded as" prong of the disability definition. Previously courts had ruled that to establish that an individual was regarded as disabled, he had to prove that he was regarded as having an impairment that substantially limits a major life activity. The act now provides that an individual meets the requirements of being regarded as having a disability "if the individual establishes that he or she has been subjected to an action prohibited under this act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."[13] At the same time, Congress requires the impairment to be substantial enough to last at least six months or more.[14] This change dovetails with the "Purpose" section that observes people with physical or mental disabilities are "frequently precluded from participation in society because of prejudice, antiquated attitudes, or the failure to remove societal or institutional barriers."[15]

As a practical matter, under the new "regarded as" definition, courts will no longer examine what the employer believed about the impact of an impairment on a major life activity. Rather, the issue will be whether the employer believed the employee had a nontransitory mental or physical impairment which caused the employer to take an adverse action. It appears from Congress's emphasis on rooting out prejudice based on antiquated attitudes, that any "regarded as" claim will continue to examine whether or not the employer's action was based upon myths and stereotypes or upon sound medical judgment. See Gruener v. Ohio Casualty Co.[16]

So what does the act mean for Tennessee employers? It should substantially change counsel's advice for preventing ADA litigation and the defense of any claims. If confronted with a potential ADA claim after Jan. 1, 2009, employers are better off assuming the impairment is a disability and acting based upon whether or not the impairment (with a reasonable accommodation) prevents the employee from performing the essential functions of the job. In the real world, it will mean that employers will have to accommodate a significantly greater range of individuals who have impairments that impact their work or other major life activity. The sage advice to make decisions based upon sound medical opinion still holds; indeed, it holds in greater force than ever given the new definition of "regarded as" claims. All in all, the act should generate increased ADA litigation with the playing field tilted heavily toward coverage of the individual by the act. It should not impact the employer's ultimate defenses, including that the individual cannot (with or without a reasonable accommodation) perform the essential functions of the job. Finally, the act creates as many ambiguities as Congress sought to correct, which will occupy the plaintiff and defense bar, as well as the courts, for years to come.


1. ADA Amendments Act of 2008, 110 P.L. 325, 122 Stat. 3553 (2008).
2. See H.R. 3195 and S. 1881 at Section 4.
3. ADA Amendments Act,  § 2(a)(8).
4. 534 U.S. 184, 198 (2002).
5. Id.  § 2(b)(4).
6. Id.  § 2(b)(5).
7. Id.  § 3(a)(2)(A).
8. See H. Rep. 110-730 (Part I) page 13.
9. ADA Amendments Act of 2008,  § 3(a)(2)(B).
10. 527 U.S. 471 (1999).
11. ADA Amendments Act of 2008,  § 3(a)(4)(E).
12. Id.  § 3(a)(4)(D).
13. Id.  § 4(a)(3)(A).
14. Id.  § 49(a)(3)(B).
15. Id.  § 2(a)(2).
16. 510 F.3d 661, 665 (6th Cir. 2008), (defendant "was not wrongfully viewing [the employee] through the stereotype of disability, 'but rather follow[ed] the specific recommendations of [a]treating physician'"), citing Mahon v. Crowell, 295 G.3d 585, 592 (6th Cir. 2002), quoting Cannon v. Levi Strauss & Co., 29 F. Appx. 331, 336 (6th Cir. 2001).

Edward G. Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.