On September 25, 2008, 18 years after his father signed the Americans with Disabilities Act of 1990 into law, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (”ADAAA” or “Act”).
The ADAAA goes a long way in restoring protections that were promised by the Americans with Disabilities Act of 1990, but rescinded by unfavorable Supreme Court decisions that interpreted the protections of the statute narrowly.
When the ADA was passed in 1990, it adopted the definition of disability used in the Rehabilitation Act of 1973, such that an individual was deemed to have a disability if he or she had a physical or mental impairment that substantially limited one or more major life activities, had a record of such an impairment, or was regarded as having such an impairment.
However, the Supreme Court, in 1999, narrowed the definition of disability in their holding in Sutton v. United Air Lines. In Sutton, the Court held that when determining under the ADA if an individual is disabled by an impairment that is substantially limiting, consideration must be given to the effects of mitigating measures such as corrective lenses, medications, hearing aids, and prosthetic devices.
In 2002, the Supreme Court went one step further in Toyota v. Williams by interpreting the word “substantially” contained in the ADA’s definition of disability to mean “considerably” or “to a large degree” and redefined a “major life activity” as one that must be of central importance to most people’s daily lives.
The ADAAA rejects the holdings in Sutton and Toyota as well as portions of the EEOC’s ADA regulations. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. More specifically the ADAAA:
- directs the EEOC to revise that portion of its regulations defining the term “substantially limits”;
expands the definition of “major life activities” by including two non-exhaustive lists:
1) the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
2) the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor;
provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
emphasizes that the definition of “disability” should be interpreted broadly.
Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for twenty-five years. Krivis serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. He is also an Emeritus member of the board of visitors at Pepperdine.
Mariam Zadeh was an active trial lawyer in New York City until September 11, 2001, at which time her life was dramatically changed. She moved to Los Angeles, obtained her L.L.M. in Alternative Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University, and became a partner with Jeffrey Krivis at First Mediation Corporation. Since joining Jeffrey Krivis, Mariam has successfully mediated employment, class actions, commercial, premises & professional liability, mass torts, medical malpractice, ERISA and other tort actions as well as matters pending on appeal. In 2007, Mariam was featured as a “Rising Star” in the Southern California Super Lawyers magazine and was profiled by the Los Angeles Daily Journal. She is a published author and frequently lectures and teaches at ADR workshops and classes throughout California.