Summary of ADA Amendments Act of 2008 (ADAAA)

posted by Neil Klingshirn  |  Jul 9, 2009 5:35 PM [EST]  |  applies to Ohio

On September 25, 2008, President Bush signed the ADA Amendment Act (ADAAA) into law.  It's effective date is January 1, 2009. The U.S. Senate and the U.S. House of Representatives both unanimously passed the ADAAA.

The ADAAA focuses on the discrimination at issue instead of the individual's disability.  It makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of Equal Employment Opportunity Commission’s (EEOC) ADA regulations. The Act 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 the statutory terms should be interpreted.

Changes in Statutory Interpretation of Terms

The ADAAA:

  • Expands the definition of "major life activities" by including two non-exhaustive lists:
    • 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);
    • The second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, 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;
  • Directs EEOC to revise the portion of its regulations that defines the term "substantially limits";
  • 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.


Source: EEOC Notice Concerning  Americans with Disabilities Act Amendments Act of 2008            

Retroactive Application


The ADAAA does not state that it shall be applied retroactively.  Therefore, under Landgraf v. USI Film Products, 511 US 244 (1994), most courts have held that the ADAAA is not applicable to cases pending before its effective date.

However, in Jenkins v. Nat'l Bd. of Med. Examiners, No. 08-5371 (6th Cir. 2009), the Sixth Circuit held that the ADA Amendments Act applies to cases pending before enactment when the relief sought is prospective in nature (i.e. an injunction ordering reasonable accommodation).

Further, in dicta in Rohr v. Salt River Project, No. 06-16527 (9th Cir. 2009), the court observed that the ADA Amendments Act can be considered when examining cases under the original ADA as the ADAAA "sheds light on Congress' original intent when it enacted the ADA." The holding is dicta because the court found that the individual was covered under the ADA even without the amendments.  Links to these two cases are at the bottom of this Article.

Text of the ADA, as Amended


The ADAAA amendments are primarily found in new 42 USC section 12102, Definition of Disability, which is set forth in full below

§ 12102.  Definition of disability


As used in this Act:

(1) Disability. The term "disability" means, with respect to an individual--

    (A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

    (B) a record of such an impairment; or

    (C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major life activities.

(A) In general. For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions. For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(3) Regarded as having such an impairment. For purposes of paragraph (1)(C):

(A)     An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(B)     Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

(4) Rules of construction regarding the definition of disability. The definition of "disability" in paragraph (1) shall be construed in accordance with the following:

(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.

(B) The term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E)     (i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--
           
(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
               
(II) use of assistive technology;
   
(III) reasonable accommodations or auxiliary aids or services; or
   
(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

        (iii) As used in this subparagraph--
               
(I) the term "ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term "low-vision devices" means devices that magnify, enhance, or otherwise augment a visual image.

42 USCS § 12102

The ADAAA also amends 42 USC Sections 12101, 12111, 12112, 12113 and 12208, as well as the Rehabilitation Act of 1973, 29 USC 705 (incorporating the amendments to the ADA.

External Links

  • none entered.

posted by Neil Klingshirn  |  Jul 9, 2009 5:35 PM [EST]  |  applies to Ohio

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