Suits In The WorkPlace

RIP ADA As We Know It

    Both houses of Congress have now either passed or are seriously considering versions of the so-called "ADA Amendments Act", a fairly sweeping change to the ADA that will greatly broaden the scope of the statute.

     I'm really not sure whether I think these changes will fundamentally alter the way ADA litigation is pursued, but there is no doubt that the changes in the law are designed to make more people fall within the "qualified individual with a disability" definition that is the key to claiming benefits under the statute. 

     For one thing, the amendment states that the definition of disability is to be construed broadly.  The amendments put some teeth in that definition by substantially altering the meaning of key terms within the ADA's lexicon.  For example, the term "substantially limits", now a key part of the disability definition, now means to "materially restrict" a major life activity.  The current standard defined "substantially limits" as preventing or severely restricting a major life activity.  "Major life activity" is defined even more broadly and now specifically includes "major bodily functions."  Accordingly, a medical condition that materially restricts a major bodily function would be a disability under the amendments.  Impairments that are episodic or are in remission are considered disabilities if they would meet the "substantially limits" definition when active.  At an extreme, I suppose this would mean that someone who has been successfully treated for cancer (cancer is rarely “cured”, and normally considered to be in remission) is disabled given the fact that active cancer substantially limits major life activities, including bodily functions.

     The statute prohibits consideration of the effects of mitigating measures in determining whether an individual is disabled.  I’m guessing this means that someone who wears glasses, but that has vision sufficiently poor enough to keep them from driving (a major life activity) without the glasses, would be considered disabled.  It will be interesting to see how far that line of reasoning goes, since our aging population is rapidly requiring glasses to do all kinds of things.  In an attempt to complicate further a semantic conundrum, the amendments also state that a plaintiff establishing that she is "regarded as" disabled, does not have to show that the subject impairment limits her or is perceived to limit a major life activity, only that she is believed to have such an impairment.  On reflection, I have absolutely no idea how that's going to play out in a litigation scenario. 

     I can only imagine a jury trying to wrestle with instructions in this kind of a situation.  Some commentators have indicated that they do not believe these amendments will mean substantially more litigation.  Everyone seems agreed, however, that the population of covered individuals is substantially greater under the new law.  In my book, that means more litigation.

Addendum:  The Senate passed its version of the bill on September 11.  The House now gets a look at the Senate version, and is expected to pass it.  The President should sign the final version.  It will go into effect on January 1, 2009.

Update:  The House passed the Senate's version today (September 18), the President's people have said he'll sign the bill.