THE AMERICANS WITH DISABILITIES ACT (ADA) AMENDMENTS ACT OF 2008

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1 THE AMERICANS WITH DISABILITIES ACT (ADA) AMENDMENTS ACT OF 2008 Calvasina, Gerald E. Southern Utah University ABSTRACT On September 25, 2008, President George W. Bush signed the Americans with Disabilities Act (ADA) Amendments Act of These amendments to the ADA of 1990 have been heralded as making important changes in how the act is to be applied by employers, enforced by the Equal Employment Opportunity Commission (EEOC), and interpreted by courts. The focal point of the amendments is centered on changes to the definition of the term "disability". In addition, Congress in amending the act sought to reverse the holdings in several U. S. Supreme Court decisions. The Court had been accused by its critics of narrowly interpreting the statute which critics said "sharply restricted the class of people who can invoke protection under the law" (Hoyer, 2008). The purpose of this paper is to examine these amendments, their potential impact on human resource decision making, and what employers should be doing now in preparation for the January 1, 2009 effective date of the amendments. INTRODUCTION On September 25, 2008, President George W. Bush signed the Americans with Disabilities Act (ADA) Amendments Act of These amendments to the ADA of 1990 have been heralded as making important changes in how the act is to be applied by employers, enforced by the Equal Employment Opportunity Commission (EEOC), and interpreted by courts. The focal point of the amendments is centered on changes to the definition of the term "disability". In addition, Congress in amending the act sought to reverse the holdings in several U. S. Supreme Court decisions. The Court had been accused by its critics of narrowly interpreting the statute which critics said "sharply restricted the class of people who can invoke protection under the law" (Hoyer, 2008). The purpose of this paper is to examine these amendments, their potential impact on human resource decision making, and what employers should be doing now in preparation for the January 1, 2009 effective date of the amendments. BACKGROUND The ADA of 1990 was signed into law by President George H.W. Bush on July 26, The law was described as a sweeping statute viewed as no less than a bill of rights for citizens with a wide variety of disabilities who have been subjected to discrimination in employment (Stein, 1991). The Rehabilitation Act of 1973, which applied to organizations that participated in federally sponsored programs, was the genesis of the ADA of The Rehabilitation Act of 1973 was amended in 1988 to apply to all programs and activities of an entity receiving federal funds, not just those particular programs or activities that receive the funds (Stein, 1991). Stein cites numerous sections of the ADA of 1990 to emphasize that the statute was meant to be broad and inclusive and that a great many disputes will arise (Stein, 1991). Stein s 1991 view that a great many disputes would arise came to fruition in 2001 with a series of Supreme Court decisions that Camille Olson, a prominent labor attorney, concluded limited the ADA by narrowly construing who is disabled (Barrier, 2002). U.S. Supreme Court Justice Sandra Day O Connor, in complaining about the 1990 ADA to a group of corporation lawyers shortly after ruling in one of those cases, described the statute as frustratingly vague, leaving uncertainties as to what Congress had in mind (Barrier, 2002).

2 2008 ADA AMENDMENTS Congress, in stating its findings and purpose of the 2008 amendments to the ADA of 1990, reported the following: SEC. 2. FINDINGS AND PURPOSES. (a) Findings- Congress finds that-- (1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage; (2) in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person s right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers; (3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled; (4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect; (5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA; (6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities; (7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term substantially limits to require a greater degree of limitation than was intended by Congress; and (8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term substantially limits as significantly restricted are inconsistent with congressional intent, by expressing too high a standard (S. 3406, 2008). (b) Purposes- The purposes of this Act are-- (1) to carry out the ADA s objectives of providing a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA; (2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures; (3) to reject the Supreme Court s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973; (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms

3 substantially and major in the definition of disability under the ADA need to be interpreted strictly to create a demanding standard for qualifying as disabled, and that to be substantially limited in performing a major life activity under the ADA 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) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for substantially limits, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual s impairment is a disability under the ADA should not demand extensive analysis; and (6) to express Congress expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term substantially limits as significantly restricted to be consistent with this Act, including the amendments made by this Act (S. 3406, 2008). The 2008 amendments to the ADA of 1990 were designed to make changes in sections 4, 5, and 6 of the act. The amendments to section 4, redefine the terms disability, major life activities, and being regarded as having such an impairment (GovTrack.us, 2008). In Section 5, Congress changed the laws current prohibition of employment discrimination against a qualified individual by striking the following phrase with a disability because of the disability of such individual and inserting the phrase discriminate against a qualified individual on the basis of disability (GovTrack.us, 2008) and (S. 3406, 2008). In addition, with respect to Congress s rejection of the Supreme Court s reasoning in Sutton v. United Airlines, Inc., in 1999, Congress prohibited the use of qualification standards, employment tests, or other selection criteria based on an individual s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity (GovTrack.us, 2008) and (S. 3406, 2008). In amending Section 6, Congress added at the end of section 501 the following: (e) Benefits Under State Worker s Compensation Laws- Nothing in this Act alters the standards for determining eligibility for benefits under State worker s compensation laws or under State and Federal disability benefit programs. (f) Fundamental Alteration- Nothing in this Act alters the provision of section 302(b)(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved. (g) Claims of No Disability- Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual s lack of disability. (h) Reasonable Accommodations and Modifications- A covered entity under title I, a public entity under title II, and any person who owns, leases (or leases to), or operates a place of public accommodation under title III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 3(1) solely under subparagraph (C) of such section. ; (S. 3406, 2008).

4 Congress also declared that the authority of the EEOC, the Attorney General, and the Secretary of Transportation to issue regulations includes the authority to issue regulations implementing the definitions of this Act (GovTrack.us, 2008). IMPLICATIONS & PREPARATIONS In summarizing the impact of these amendments, Bill Leonard writing for the Society for Human Resource Management (SHRM) wrote that the new law will: Prohibit the consideration of measures that reduce or mitigate the impact of impairment such as medication, prosthetics and assistive technology in determining whether an individual has a disability. Cover workers whose employers discriminate against them based on a perception that the worker is impaired, regardless of whether the worker has a disability. Clarify that the Americans with Disabilities Act provides broad coverage to protect anyone who faces discrimination on the basis of a disability (Leonard, 2008). The general consensus as to the implications of the 2008 Amendments to the ADA of 1990 at this point appears to be that employers covered by the ADA will face a greater risk of being sued (HR Daily Advisor, 2008). With the expanded coverage and the instructions to courts to broadly read the term disability it would also appear that it will be a whole lot easier for more employees to claim that they are disabled, thereby requiring employers to accommodate them (HR Daily Advisor, 2008). In the current economic environment, with organizations under pressure to rein in costs, more regulations, more litigation, and more requests for accommodation is not how employers were hoping to start the new year. With the EEOC working on new regulations to implement the amended ADA for January 1, 2009 and with courts under clear congressional intent to broaden their interpretation of the term disability, employers should not expect (either of) them to be pro employer (HR Daily Advisor, 2008). As for preparation advice for employers, the 2008 ADA amendments will certainly reiterate the importance of training. The failure to train managers has been held to be an extraordinary mistake on more than one occasion by courts in the past (Wood, 2002). And with new regulations on the way, employers will be well advised to increase their training budgets for 2009 to prepare decision makers once the new EEOC regulations are announced. The amendments and the new regulations will also necessitate internal auditing of policies and procedures for dealing with testing and accommodation requests (HR Daily Advisor, 2008). One final observation, the 2002 words of Chai Feldblum, disability activist and law professor at Georgetown University, would also seem to still hold true - Employers are going to have to continue to pay a lot of money to their management lawyers in defending ADA suits (Barrier, 2002,p. 38). REFERENCES Barrier, Michael (2002). A Line in the Sand, HR Magazine, Vol. 47, # 7, pp GovTrack.us. S th Congress (2008): ADA Amendments Act of 2008, GovTrack.us (database of federal legislation (accessed Oct 26, 2008). S. 3406, (2008). Text of S. 3406: ADA Amendments Act of (accessed Oct 26, 2008). Hoyer, Steny H. (2008). Testimony before Committee on Education and Labor Hearing on H.R. 3195, ADA Restoration Act of 2007, January 29, HR Daily Advisor, (2008). ADA Amendments: Supremes Get a Reprimand, HRDailyAdvisor@mail55.subscribermail.com, received 10/3/2008.

5 Leonard, Bill (2008). President Bush signs ADA Amendments, SHRM News, (Accessed October 3, 2008). Stein, Robert E. (1991). A New Bill of Rights for Millions the Americans With Disabilities Act of 1990, Arbitration Journal, Vol. 46, # 2, pp Wood, Mary Anne Q. (2002). Failure to train managers held to be extraordinary mistake, Utah Employment Law Letter, Vol. 7, No. 10, April 2002.