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Hi, and welcome to the Disability Law Lowdown. This is your host, Jacquie Brennan.

Today’s podcast is going to be about the new ADA Amendment Act. On January 25, 2008, the ADA Amendment Act, which is acronymed as ADAAA, was signed into law and will become effective on January 1, 2009. The ADA Amendments Act was supported by more than 220 national organizations, including the US Chamber of Commerce, the American Society of Employers, disability organizations, veterans groups, church organizations, and the National Association of Manufacturers.

The bill passed the House of Representatives on a vote of 402 to 17 and unanimously passed the Senate, and then went to the President for his signature, which was given on September 25, 2008.

To understand what this new law means, though, it’s important to understand why the ADA needed amending in the first place. When the Americans with Disabilities Act was passed back in 1990, the ADA had a definition of “disability” that was based on the definition that had been used in the Rehabilitation Act of 1973. An individual with a disability has a physical or mental impairment that substantially limits one or more major life activities. Or has a record of such an impairment or is regarded as having such an impairment.

So when Congress used that definition, which was originally in the Rehab Act, it did so because that definition had worked well. The Supreme Court, though, started narrowing the definition in 2009, and they did this in unexpected ways that were not forseen by Congress, so what happened was, in a case, the first case, that was called Sutton v. United Airlines. The court said when you determine whether an individual with a disability has an actual disability under the ADA, you have to consider the effects of mitigating measures, like corrective lenses, medications, hearing aids, prosthetic devices. When you decide whether an impairment is substantially limiting. So basically it said before you decide whether a peson is substantially limited, you don’t just look at their disability, you have to look at what their disability is like with the mitigating measure. So, if a person is substantially limited without medication, but when they’re on medication, they’re not substantially limited, then they won’t have a disability. And this really did narrow the definition of who was covered. Because, even things like hearing aids, which in most cases do not return a person’s hearing to the same hearing that other people have, still that wasn’t considered a disability, because with the hearing aid, they weren’t substantially limited in a major life activity.

And the court did one other thing in this Sutton case. It essentially overturned a very old case called School Board of Nassau County v. Arline. That case had broadly viewed the part of the definition of disability that mentions having a record of an impairment. The court in Suton required a much more restrictive view of that part of the definition, which in practical terms actually elimited that part of the definition.

And then a few years later in 2002 in a case called Toyota v. Williams, the Supreme Court focused on the word “substantially” from the definition of the “disability” and gave us a definition of “substantially” that meant “considerably” or “to a large degree”. At the same time, the court also narrowed the scope of “major life activity” saying that if you’re going to say that a major life activity is limited, what that major life activity must be is something that is of central importance to most people’s daily lives.

So those two things from Toyota also limited the definition, because “substantially’ to a keep a number of people without coverage at all, people who would have been covered under the ADA prior to this case. An example is someone with epilepsy. A person with epilepsy whose seizures are controlled to such a degree that they only have a seizure once a month and it only lasts for a short amount of time. Courts then found that that person was not substantially limited because it was such a short amount of time in any given month that the person wasn’t limited at all. So it really did narrow that definition some more.

So between those two cases, Sutton and Toyota, and their progeny -- cases that were decided based on those two cases, the definition of disability was narrowed to such a degree that most of the cases became about whether the person actually met the definition of disability whether than focusing on access or accommodation.

The Equal Employment Opportunity Commission, the EEOC, had done its part, too. It ad regulations that defined “substantially limits” as “significantly restricts“, which was inconsistent with what Congress intended when it first passes the ADA.

So all of that is why Congress decided that the ADA needed to be amended. Now, at the beginning of every new law, Congress writes, it lists things called “findings”. The findings are the reasons why the law is being written and in the case of the ADA Amendment Act, there’s a list of findings. Findings include that Congress intended the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage. And 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. And, the court specifically stated that the Supreme Court holdings in Sutton and Toyota eliminated protection from many individuals that Congress had intended to protect.

After the findings, the law lists the purposes. And in this case, the purposes of the ADA Amendment Act include to reject the requirement under Sutton that mitigating measures be considered when determining whether a person meets the definition of disability. And, to reject the Supreme Court’s reasoning under Sutton with regard to the record of prong of the definition of disability and to reinstate the older Arline standard. And, to reject the Toyota standard that the terms “substantially” and “major” need to be interpreted strictly, because that creates a demanding standard for qualifying as a person with a disability. And, to express Congress’ expectation that the EEOC will revise its definition of “substantially limits”. You're listening to the Disability Law Lowdown, show number 18.

The ADA has new rules for the definition of “disability” and they include the definition of disability must be construed in favor of broad coverage to the maximum extent permitted. And the term “substantially limits” is to be interpreted consistently with the ADA Amendment Act. And an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability. And an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. And mitigating measures shall not be a factor when determining whether an impairment substantially limit’s a major life activity. The only mitigating measures that can be considered are ordinary eye glasses and contact lenses that fully correct visual acuity or eliminate refractive error. And people who are regarded as being disabled are not entitled to reasonable accommodations or modifications. Previously, the court had debated whether the ADA required accommodating a disability that actually exist. But remember that this applies only to that very narrow group of people who are covered by the ADA even though they do not have a disability but are covered because they are nevertheless regarded as having a disability.

So the ADA Amendments Act is not really some big, new, revolutionary law. All it does is really, it attempts to bring the law back to what Congress wanted it to be when it passed the ADA back in 1990.

If you have any questions about the ADA Amendments Act or any other part of the ADA or related disability laws, be sure to contact your ADA Centers, which are part of a national network of disability business and technical assistance centers. And we can be reached at 1-800-949-4232.

Thanks for tuning in!

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability-related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research.

You can subscribe to the Disability Law Lowdown at our website, disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.