The Law School Magazine  ·  Spring 2009 : Departments

How Changes to the Americans with Disabilities Act Could Affect You

By - Spring 2009
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In September 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008. The act made changes to the definition of “disability,” and reassessed how statutory terms involving disabilities should be interpreted. Professor Ruth Colker, one of the leading scholars in the country in the areas of disability discrimination, was a leading proponent of these amendments.

Why were the amendments needed?

The civil rights community argued that amendments were needed to reverse the pro-defendant direction of several recent Supreme Court decisions that made it very difficult for plaintiffs to survive a motion to dismiss. My work and that of others suggested that more than 90 percent of potential plaintiffs had their cases dismissed before trial because they could not meet the definition of “disability.”

Under the Americans with Disabilities Act (ADA), plaintiffs can only bring cases if a court concludes they are an “individual with a disability.” The ADA creates three ways that an individual can seek to meet that statutory definition. An individual can argue that he or she: (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a “record of” such a physical or mental impairment, or (3) is “regarded as” having such a physical or mental impairment.

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court had concluded that the determination of whether an individual has a “substantial” limitation should be made after the individual uses corrective or mitigating measures such as eyeglasses, hearing aids, prosthetic devices or medication. Even though United Air Lines insisted that the plaintiffs take their vision test without the benefit of corrective lenses, the Supreme Court concluded that the plaintiffs were not disabled because their vision was normal when they used corrective lenses. The civil rights community argued that the Sutton decision made it impossible for someone to be both “qualified”  and “disabled,” because the corrective measures used to render the person “qualified” would then move the person out of the category of being “disabled.”

In addition, the Supreme Court had narrowly construed the “regarded as” definition of disability, particularly when the individual argued that he or she was falsely regarded as unable to work.  The courts had required the plaintiff to demonstrate that the employer regarded him or her to be unable to perform a wide range of jobs, not merely the specialized position at issue in the case.  Thus, in the Sutton case, they lost under a “regarded as” theory because the employer only regarded them as unable to perform the job of “global airline pilot,” which was too specialized under this rule of law to constitute a disability.  The civil rights community argued that no one could prevail under this definition of disability because an employer is never going to acknowledge a view about a person’s ability beyond the specific job at issue.

What are the key elements that everyone should understand?

Congress overturned the mitigating measure rule. It instructed the lower courts to assess plaintiffs in their “pre-mitigated condition” to determine whether they are disabled. Hence, individuals who use medication to control epilepsy, who wear prosthetic devices that enable them to use their limbs, or wear hearing aids are now considered “disabled” even if their mitigating measures cause them to function within the “normal” range. Congress also instructed lower courts to interpret the term “disability” broadly.

Nonetheless, Congress wrote a special rule for people who wear corrective lenses. Individuals should be assessed with respect to their “mitigated state” if they wear corrective lenses. But, if an employer insists that an applicant for employment be tested without the use of corrective lenses, then the employer has to justify the need for such a test. The rule reflects the reality that it is “normal” to need to wear corrective lenses so people who wear corrective lenses should not ordinarily be considered disabled. There is an exception, though, for the unusual situation in which an employer requires virtually perfect vision without the use of corrective lenses as a condition of employment. In the Sutton case, under the current rule, United Air Lines would have to justify why pilots need to have vision within a certain range without the use of corrective lenses.

In addition, Congress broadened the “regarded as” definition so that plaintiffs no longer need to demonstrate they were falsely regarded as unable to perform a broad class of jobs.

How could these changes affect me or my clients?

If your client is a business or an educational institution, and it is facing a claim of “disability” discrimination, it is quite likely that the courts will conclude that the complaining party is “disabled.” The legal issue will now become whether there was a valid reason for treating that individual in the way that has given rise to the dispute.

If you are a trial lawyer, and take plaintiff-oriented cases, then you will find it somewhat easier to defeat a motion to dismiss on the grounds that your client is not disabled.

What should businesses know about the changes?

Employers should know that they now have many more employees who meet the definition of disability under federal law. When these employees request accommodations to perform their job, they would be advised to engage in a good faith, interactive discussion about those accommodations. Employees still have to be able to perform the essential functions of the job after receiving accommodations but more employees can now request an accommodation discussion. In order to avoid the possibility of punitive damages, employers need to engage in a good faith discussion about those accommodations.

Educational institutions should know that they now have many more students with disabilities at their institution. Congress explicitly concluded that impairments in learning, reading, concentrating, thinking and communication constitute disabilities. Students still have to be “qualified” to attend educational institutions but they will have stronger recourse to requesting accommodations under the amendments.

What problems do you foresee?

I wonder if state courts will now apply these rules to claims brought under state disability statutes.

Were you happy with the amendments?
Why or why not?

I was thrilled. Congress passed the ADA in 1990 with a strong bipartisan majority. I have no doubt that Congress intended the statute to cover individuals with hearing impairments, epilepsy, mental retardation, cancer, and HIV, based on the testimony it heard in the late 1980s. Yet, the courts had construed the statute so narrowly that the claims of many individuals with such impairments were dismissed because they could not demonstrate they were “disabled.” These individuals may not prevail under the amended statute, if an entity had a valid reason for treating them in a particular way. Nonetheless, these individuals should now get their day in court to demonstrate that they are qualified individuals with disabilities who have faced unlawful discrimination.

Professor Ruth Colker is the Heck Faust Memorial Chair in Constitutional Law at Moritz. She joined the College’s faculty in 1997. Colker is the author of seven books, two of which have won book prizes. She has also published more than 50 articles in law journals around the country. Colker was also a recipient of the University’s Distinguished Lecturer Award in 2001, the University’s Distinguished Diversity Enhancement Award in 2002, and the University’s Distinguished Scholar Award in 2003.

 

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