Slide 1:
Welcome to the 2008 
Legal Issues Webinar Series
The content and materials of this training are property of the DBTAC: Great Lakes ADA Center and cannot be distributed without permission.  This training is develop under NIDRR grant #H133A060097. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at cdiaz3@uic.edu or toll free (800)949-4232 (V/TTY).

Slide 2
The ADA Amendments 
Act of 2008

Presented by: 
Barry C. Taylor, 
Legal Advocacy Director
Equip for Equality 

Equip for Equality is providing this information under a subcontract with the DBTAC: Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability Rehabilitation and Research Award No. H133A060097. 

Slide 3
Goals of the ADA
Congress had several goals when it passed the ADA in 1990 including:
•	 Providing a clear and comprehensive 	national mandate for the elimination of disability discrimination; and
•	 Providing clear, strong, consistent, enforceable standards addressing disability discrimination. 

Slide 4
The ADA in Historical Context
When signing the ADA on July 26, 1990, President George H. W. Bush stated: 

 “I now sign legislation which takes a sledgehammer to a…wall, one which has for too many generations, separated Americans with disabilities from freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls for claiming together we will not accept, we will not excuse, and we will not tolerate discrimination in America.” 

Slide 5
The ADA and Section 504 
of the Rehabilitation Act
•	  When enacting the ADA, Congress intended that the 	executive agencies and the courts would continue the 	broad, flexible interpretation of the definition and scope of 	coverage under Section 504.  

•	  Prior to the ADA, the Supreme Court in School Board of 	Nassau County v. Arline, 480 U.S. 273, 284 (1987), 	interpreted the definition of disability under Section 504 	very broadly and “acknowledged that society’s myths and 	fears about disability and disease are as handicapping as 	are the physical limitations that flow from actual 	impairment.”

Slide 6
Protected Individuals 
Under the ADA of 1990 Under the current law, “The term "disability" means, with respect to an individual”
		(A) a physical or mental impairment that substantially 			limits one or more of the major life activities of such 			individual;
		(B) a record of such an impairment; or
		(C) being regarded as having such impairment.
Also covered are people who have an association with someone with a disability.
	
42 U.S.C. §§ 12102(2), 12112(B)(4); 29 C.F.R. § 1630.2(g).

Slide 7
Substantial Limitation Under the ADA of 1990
Substantial Limitation: 
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. §1630.2(j) 

Slide 8
Court Interpretations Narrow ADA Coverage
Unfortunately, ADA goals have not been met due to restrictive court decisions:
•	 Sutton “Trilogy” – mitigating measures 	ruling restricted definition of disability
•	 	Toyota v. Williams – established that definition of disability should be 	“interpreted strictly” to create a “demanding 	standard.” 

Slide 9
Sutton v. United Airlines, 
527 U.S. 421 (1999) 
Facts: Twin women sued under ADA after United refused to hire them as pilots because of their inadequate vision. United then claimed they were not covered by the ADA because they were not substantially limited in a major life activity when they wore their glasses.
Issue: Are mitigating measures taken into account when assessing disability?
Supreme Court: Effects of corrective measures must be taken into account when determining if plaintiff has an ADA disability. 

Slide 10
Sutton v. United Airlines, 
527 U.S. 421 (1999) (cont’d)
Impact: Hundreds of ADA cases have been dismissed because the plaintiff deemed to not have a disability when the mitigating measure was taken into account.
Catch 22: Forces people with disabilities to choose between enforcing their civil rights and addressing the manifestations of their disabilities. 
EEOC/DOJ Disregarded: Court refuses to give deference to regulations on this issue.

Slide 11
Toyota v. Williams, 
534 U.S. 184 (2002) 
Facts:  Woman with carpal tunnel syndrome who was denied accommodation and ultimately terminated sued under the ADA. 
Supreme Court:  Plaintiff did not have an ADA disability because she was not substantially limited in performing manual tasks that are “central to most people’s daily lives.” Definition of disability is to be “interpreted strictly” to create a “demanding standard.” 
Impact: Further narrowed who is considered to have an ADA disability

Slide 12
Lower Court Decisions 
Finding No ADA Disability
People with the following impairments have been found not to have an ADA disability:
•	 Mental Retardation – Littleton v. Wal-Mart Stores, Inc., 		(11th Cir. 2007)
•	 Epilepsy – Todd v. Academy Corp., (S.D. Tex. 1999)
•	 Diabetes – Orr v. Wal-Mart Stores, Inc., (8th Cir. 2002)
•	 Bipolar Disorder – Johnson v. North Carolina Dep’t of Health 	and Human Services, (M.D.N.C. 2006)
•	 Multiple Sclerosis – Sorensen v. University of Utah Hosp., 	(10th Cir. 1999)
•	 Hearing Impairment – Eckhaus v. Consolidated Rail Corp., 	(D.N.J. 2003)
•	 Back Injury – Wood v. Crown Redi-Mix, Inc., (8th Cir. 2003)

Slide 13
Lower Court Decisions 
Finding No ADA Disability
People with the following impairments have been found not to have an ADA disability:
•	 Vision in Only One Eye – Albertson's, Inc. v. Kirkingburg, 	527 U.S. 555 (1999) 
•	 Post-Traumatic Stress Disorder – Rohan v. Networks 	Presentations LLC, (4th Cir. 2004)
•	 Heart Disease – Epstein v. Kalvin-Miller Intern., Inc., 	(S.D.N.Y. 2000)
•	 Depression – McMullin v. Ashcroft, (D. Wyo. 2004)
•	 HIV Infection – Cruz Carrillo v. AMR Eagle, Inc., (D.P.R. 	2001)
•	 Asthma – Tangires v. Johns Hopkins Hosp., (D. Md. 2000)
•	 Cancer – Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir. 2006)

Slide 14
ADA Restoration Act
•	Because of restrictive court decisions, agreement in the disability community that ADA needed to be amended 
•	ADA Restoration Act introduced 7/26/07
•	Act changed definition of disability - removed “substantially limits one or more major life activities”
•	Similar to many state disability laws, including Illinois

Slide 15
ADA Restoration Act 
Becomes ADA Amendments Act
•	Concern among business community that ADA coverage would expand too greatly under amended definition of disability
•	Representatives from the disability community and the business community agreed on compromise language
•	Compromise results in ADA Amendments Act 
•	Original definition of disability added back in and “substantially limited” was defined as “materially restricts” (in the House version)

Slide 16
The ADA Amendments Act (ADAAA)
Looking Ahead

Slide 17

ADA Amendments Act: 
Key Findings
•	Congress’ expectations that “disability” would be interpreted consistently with court interpretations of “handicapped” under the Rehab Act have not been fulfilled; 
•	Supreme Court’s Sutton and Toyota decisions have narrowed the ADA - eliminating protection for many individuals Congress intended to protect
•	As a result of these Supreme Court cases, lower courts have incorrectly found in numerous cases that people with a range of substantially limiting impairments do not have an ADA disability

Slide 18

ADA Amendments Act: Purposes
The purposes of the ADA Amendments Act are to: 
•	Reject the reasoning in the Sutton & Toyota cases and reinstate reasoning from Arline; 
•	Convey that Congress intended that a primary focus in ADA cases is whether entities covered by the ADA have complied with their obligations; 
•	Convey that whether a person’s impairment is an ADA disability should not demand extensive analysis; and
•	Make clear Congress expects that the EEOC will revise its current regulations that defines the term “substantially limits” as “significantly restricted.” 

Slide 19

ADA Amendments Act: 
Codified Findings
Removed: Paragraph (1) from ADA including the finding that “some 43,000,000 Americans have one or more … disabilities, and this number is increasing as the population …. is growing older”

Added: Paragraph (1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination…; 

Slide 20

ADA Amendments Act: 
Codified Findings
Removed:   Paragraph (7) individuals with disabilities are a discrete and insular minority …, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness … based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions ….

Slide 21

ADA Amendments Act: Definition of Disability
•	ADA’s original definition of disability put back in legislation (i.e. substantially limited in a major life activity is added back in)
•	Rules of Construction: Explicitly states that the definition of disability “shall be construed in favor of broad coverage” … “to the maximum extent permitted by the terms of this Act.”

Slide 22

Rejection of Sutton Decision
The definition of disability rejects Sutton: 
•	Mitigating measures are NOT to be considered in determining whether a person has a disability.
•	Eliminates the “Catch-22” that exists under current law 
•	Exception - eyeglasses or contacts lenses

Slide 23

Episodic Impairments Covered 
Clarification: impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active
Examples: epilepsy, PTSD, cancer, diabetes
Rejects cases that such conditions are not protected by the ADA

Slide 24

ADA Amendments Act: Major Life Activities 
A non-exhaustive list of major life activities:
caring for oneself			walking & standing 
performing manual tasks 		reading
seeing 				lifting
hearing 				bending
eating					speaking
sleeping 				breathing
learning				communicating 	
concentrating & thinking		working 
 Activities not previously recognized by EEOC include: reading, bending, and communicating

Slide 25

ADA Amendments Act: Major Life Activities – cont’d
Major life activities also include the operation of “major bodily functions”

immune system			neurological
normal cell growth		brain
digestive 				respiratory
bowel				circulatory
bladder				endocrine 
reproductive functions

Slide 26

Major Life Activities:
One is Sufficient
Only one major life activity need be impacted. 

The Act clarifies that individuals are not excluded from coverage because of an ability to do many things, as long as substantially limited in one major life activity.

Slide 27

“Regarded As” Prong 
•	 The bill broadens coverage under the 	ADA’s 	“regarded as” prong of the definition of disability.
•	 	Clarifies that “regarded as” applies “whether 	or not the impairment limits or is perceived to limit 	a major life activity.”  
•	 Exception – provision does not apply to 	impairments that are “transitory and minor.” 
•	Defined as “an actual or expected duration of six months or less. 

Slide 28

“Regarded As” Prong Cont'd
•	 Many previous ADA cases were dismissed 	because it was difficult to prove the 	employer regarded the employee as being 	limited in a specific major life activity
•	 Act focuses more on whether there was  	unequal treatment instead of the specifics 	of the employer’s perceptions
•	 No need to show employer perceived the 	impairment to limit a major life activity. 

Slide 29

“Regarded As” Prong and
Reasonable Accommodation
Courts have differed on whether people who are “regarded as” having a disability are entitled to reasonable accommodations

Bill clarifies that reasonable accommodations do not extend to those who are only covered by the ADA under the “regarded as” prong

Slide 30

“Qualified ”
The ADA Restoration Act had removed the term “qualified” from the anti-discrimination provision  

The ADA Amendments Act makes it unlawful to discriminate against a qualified individual on the basis of disability 

Slide 31

Regulatory Authority
•	 EEOC, DOJ and Secretary of Transportation 	granted explicit authority to issue regulations 	interpreting the definition of disability under the 	ADA 
•	 	Repudiates Supreme Court’s ruling in Sutton 	allowing courts to ignore federal regulations 	interpreting definition of disability
•	 EEOC indicated it will be issuing new regulations 	including redefining “substantial limitation”

Slide 32

Interplay with Rehab Act
Section 504 of the Rehabilitation Act prohibits discrimination by entities that receive federal funding

ADA Amendments Act explicit that its provisions apply to the Rehabilitation Act and that the two laws should be interpreted consistently

Slide 33

Vision Tests
Covered entities cannot use “qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria is shown to be “job-related for the position in question and consistent with business necessity.” (Emphasis added)

Slide 34

Additional Provisions:
•	No cause of action for “reverse discrimination.”
•	Changes definition from “qualified individual with a disability” to “qualified individual.” [Sec. 12111(8)]
•	Discrimination must be “on the basis of disability.”

Slide 35

ADA Amendments Act:
Passes House of Representatives
Voted out of the House Education and Labor Committee (43-1) 
Voted out of the House Judiciary Committee (27-0)
Passed the House by an overwhelming vote (402-17) 

Slide 36

ADA Amendments Act:
Introduced in the Senate
•	The Senate Bill was very similar to the House Bill
•	Main Difference:
•	Removed the House version’s “materially restricts” language to clarify definition of “substantially limits,” but aims to accomplish the same result by  stating that the term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADAAA. 

Slide 37

The ADA Amendments 
Act Becomes Law
•	On 9/11/08, the Senate Bill passed by unanimous consent (voice vote).
•	House approved the Senate version on 9/17/08 (voice vote).
•	President Bush signed the Bill on September 25, 2008.
•	The effective date of the law is 1/1/09.

Slide 38

ADAAA – Summary of 
Main Changes
•	Removes Sutton requirement for mitigating measures;
•	States that the EEOC & courts' interpretations of the term "substantially limits" were too restrictive;
•	Defines "major life activity" more broadly; 
•	Eliminates the “substantial limitation” requirement for “regarded as” claims;
•	Clarifies that an impairment that is episodic or in remission is evaluated when active;
•	Directs the courts to interpret the ADA as a remedial statute, i.e., liberally; 	and
•	 Amends the Rehabilitation Act for is consistency. 

Slide 39

ADAAA – 
Ramifications for Employers
•	 	More coverage for people:
•	With “episodic conditions”
•	Who use“mitigating measures”
•	With limiting conditions that do not meet the current standard
•	Who are “regarded as” being disabled
•	 	Emphasis will be on employer’s conduct rather than 	employee’s medical condition.
•	 	Make sure job criteria meets “business necessity” test.
•	 	Having training on the new requirements, periodic ADA 	training, and reevaluating ADA policies may be helpful.

Slide 40

ADAAA Non-Ramifications
•		Burden still on employee/applicant to prove discrimination
•	 	Employee/Applicants still must show they are qualified to 	perform essential job functions with or without a 	reasonable accommodation.
•	 	Generally, employees still must request a reasonable 	accommodation to begin the “interactive process.”
•	 	Temporary conditions are still not covered and are better 	defined.  
•	  No impact on affirmative defenses   
•	  Access requirements of Title II and III are unaffected

Slide 41
QUESTIONS?

Slide 42

Thank you for Participating In Today’s Session
Please join us for the next session in this series: 
January 13, 2009 
Interplay between the Americans with Disabilities Act and the Family and Medical Leave Act (FMLA)

Slide 43

Session Evaluation
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