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The US House of Representatives overwhelmingly approved legislation on June 25, 2008, that would amend the Americans with Disabilities Act of 1990 (ADA). The proposed ADA Amendments Act (H.R. 3195), which passed the House by a vote of 402-17, would change the ADA's definition of "disability," add rules of construction rejecting past Supreme Court interpretations of the Act and make changes to the ADA's codified findings and regulatory authority. The ADA is the nation's first comprehensive civil rights law addressing the needs of people with disabilities and prohibiting discrimination in employment, public services, public accommodations and telecommunications. Overall, the ADA Amendments Act would make changes to the Act's employment discrimination provisions, which prohibit bias against qualified individuals with disabilities in the private sector and in state and local governments.
The bill, which is the result of a House-negotiated compromise between the business and disability communities, has the support of more than 50 national and 60 state and local disability groups, the US Chamber of Commerce, the Society for Human Resource Management (SHRM), the National Association of Manufacturers, the Human Resource Policy Association and a growing list of companies, including McDonalds, General Motors and Honeywell, according to the American Association of People with Disabilities (AAPD). The AAPD is the largest national nonprofit cross-disability member organization in the United States, working in coalition with other disability organizations for the full implementation and enforcement of the ADA and Rehabilitation Act of 1973.
Speaking on the floor in support of the bill, House Majority Leader Steny H. Hoyer (D-Md), the lead sponsor of the original ADA and one of the original sponsors of the ADA Amendments Act, said: "Eighteen years ago next month, the first President Bush signed into law one of the most consequential pieces of civil rights legislation in recent memory. In the ceremony on the South Lawn of the White House, he said this: 'With today's signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.'" However, "in interpreting the law over those 18 years, the courts have consistently chipped away at Congress's clear intent. . .in a series of narrow rulings that have had the effect of excluding millions of Americans from the law's protection, for no good reason," said Hoyer. "With the ADA Amendments Act, we make it clear today that a cramped reading of disability rights will be replaced with a definition that is broad and fair. That those who manage to mitigate their disabilities are still subject to discrimination-and still entitled to redress. And that those regarded as' having a disability are equally at risk-and deserve to be equally protected."
"H.R. 3195 makes it clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of disability and that Congress intended the act to be constructed broadly," remarked Representative George Miller (D-Cal), chairman of the House Education and Labor Committee, on the House floor. "It is time to restore the original intent of the ADA." In a statement from Speaker of the House Nancy Pelosi (D-Cal), she said: "Today, Congress is restoring the law's intent and its broad protections. By strengthening the ADA, we bring our nation closer to the ideals of equality and opportunity that are both our heritage and our hope."
Background. The bill, first introduced in July 2007 as the ADA Restoration Act by Representatives F. James Sensenbrenner, Jr. (R-Wisc) and Majority Leader Hoyer, was later renamed the ADA Amendments Act after the compromise was negotiated. The sponsors introduced the bill in order to restore the original intent of the ADA. According to the sponsors, four Supreme Court decisions (Sutton v United Airlines, Inc (6 ADD ¶6-217), Murphy v United Parcel Service, Inc (6 ADD ¶6-218), Albertsons, Inc v Kirkinburg (6 ADD ¶6-220), Toyota Motor Manufacturing, Kentucky, Inc v Williams (9 ADD ¶9-204)) have ignored Congress' clear intent regarding who should be protected under the Act and have narrowed the category of who qualifies as an "individual with a disability" under the ADA. In fact, the Supreme Court's decisions, supporters of the bill say, have narrowed the definition of "disability" to the point that people with serious impairments such as epilepsy, cancer, diabetes and cerebral palsy have failed to meet the ADA s definition of disability. As a result, plaintiffs in 2004 lost 97 percent of ADA employment discrimination claims that went to trial.
On June 18, the House Education and Labor Committee marked up and reported out the bill, which was offered by chairman Miller (D-Cal) as a substitute to H.R. 3195, the originally introduced ADA Restoration Act. That same day, the Judiciary Committee also passed the bill. Two other committees that shared jurisdiction over the measure -- the Energy and Commerce Committee and the Transportation and Infrastructure Committee -- were to discharge the bill without markups.
Definition of "disability" would change. The proposed bill makes clear that the the ADA itself should be interpreted broadly to protect anyone who faces disability discrimination. The bill would redefine "disability" to be any actual, past or perceived physical or mental impairment that "substantially limits one or more major life activities." While "substantially limits" is defined in the proposed bill as "materially restricting a major life activity," the phrase "materially restricting a major life activity," is neither defined in the bill or the ADA itself.
The bill also includes a non-exhaustive list of covered major life activities (i.e., caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working) and even defines the operation of major bodily functions (i.e., functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions) as a covered major life activity. The definitional change and list of "major life activities" is intended to restore coverage for many groups who have been interpreted by the courts to not be disabled under the ADA.
The bill departs from the High Court's language in Toyota interpreting the definition of "disability" strictly, and that to be substantially limited in performing a major life activity under the ADA, "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." As a rule of construction, the definition of "disability" under the proposed bill would be construed broadly, so that: (1) an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability under the ADA and (2) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
The proposed bill adds other rules of construction to the definition of "disability," prohibiting courts from considering whether a person uses mitigating measures (medication, a prosthesis or a hearing aid) or from considering whether the manifestations of an impairment are "episodic, in remission, or latent" when determining if a person has an impairment. This would reverse the Supreme Court's decision in Sutton holding that "mitigating measures" should be taken into account when determining if a plaintiff is disabled under the ADA. The proposed bill does allow courts to consider the ameliorative effects of vision corrections obtained through the use of ordinary eye glasses and contact lenses, but employers may not screen out people with ordinary eyeglasses and contact lenses unless there is a business necessity.
"Regarded as" disabled. The ADA Amendments Act makes a number of changes to the "regarded as" prong of the ADA. The bill reiterates that employees are covered under the ADA if their employer discriminates against them based on the perception that they are impaired, regardless of whether the employee is disabled under the Act. The "regarded as" prong would be construed broadly to cover employees if they establish that they have been subjected to an adverse action because of an actual or perceived physical or mental impairment whether or not that impairment limits or is perceived to limit a major life activity. However, the "regarded as" prong would exclude impairments that are transitory and minor, defining such impairments as those with an actual or expected duration of six months or less. In maintaining a broader view of the "regarded as" prong, the bill would reinstate the Supreme Court's reasoning in School Board of Nassau County v Arline (42 EPD ¶36,791), which emphasized that the ADA is designed to protect individuals who are discriminated against because of the negative attitudes of others toward them, whether or not they have an actual physical or mental impairment.
In an issue that has caused a split among the circuit courts, the proposed bill states that employers, public entities (under Title II) and any person who owns, leases (or leases to), or operates a place of public accommodation (under Title III) need not provide reasonable accommodations to employees or individuals who are "regarded as" disabled. They also do not have to provide reasonable modification to policies, practices or procedures.
While the circuits have previously held that in "regarded as" cases no accommodation is required, they are now concluding the opposite. The Third Circuit in Williams v Philadelphia Hous Auth Police Dept (11 ADD ¶11-233), the Tenth Circuit in Kelly v Metallics West, Inc (12 ADD ¶12-010), the Eleventh Circuit in D'Angelo v Conagra Foods, Inc (12 ADD ¶12-028) and the implied position of the First Circuit conclude that by its plain language, the ADA does not distinguish between "actually disabled" and "regarded as" disabled individuals in connection with requiring an employer to provide a reasonable accommodation or engage in the interactive process. However, the Fifth, Sixth, Eighth and Ninth Circuits have held that a bizarre result would occur by accommodating an employee's nonexistent impairment.
The proposed bill also strikes from the ADA certain codified findings in the Act, which: (1) stated that some "43,000,000 Americans have one or more physical or mental disabilities" and (2) called individuals with disabilities a "discrete and insulor minority." Striking these provisions complies with the bill's mandate that the ADA be construed broadly. The proposed bill also authorizes the Attorney General, US Equal Employment Opportunity Commission (EEOC) and the Secretary of Transportation to issue regulations on the definition of "disability." Other amendments to the ADA in the proposed bill include striking the phrase "with a disability because of the disability of such individual" and inserting "on the basis of disability." The change would sync the ADA's language to other antidiscrimination laws by focusing on whether individuals who have been discriminated against proved that the discrimination was based on a personal characteristic (disability), not on whether they proved the characteristic exists.
The text of the proposed bill, which would take effect January 1, 2009, can be found at the following website.
In order to handle the additional disability discrimination cases, the Congressional Budget Office (CBO) estimates that implementing the ADA Amendments Act would cost the EEOC $25 million over the 2009-2013 period. The EEOC's current caseload of ADA actions is about 20,000 annually. The CBO cost estimate found that the ADA Amendments Act would increase the agency's workload by no more than 10 percent in most years, or roughly 2,000 cases annually. Based on the required EEOC staffing levels necessary to handle the agency's current caseload, the CBO expects that implementing the Act would require 50 to 60 additional employees. The CBO also estimated that the costs to hire those new employees would reach $5 million by fiscal year 2010, subject to appropriation of the necessary amounts. In 2008, the EEOC received an appropriation of $329 million. The additional cases resulting from the ADA Amendments Act could also increase the workload of the US Department of Justice, confirmed the CBO. However, enacting H.R. 3195 would not affect direct spending or revenues. The June 23 cost estimate can be found at the following website.
On June 24, the Bush Administration said that while it "supports passage of legislation that improves the ADA" and "strongly supports the overall intent of H.R. 3195," the Administration had "significant concerns" that certain provisions in the bill "could unduly expand ADA coverage, would result in a significant increase in litigation, and would be difficult to implement." According to the statement, the proposed bill, which would redefine the term "substantially limits" to mean "materially restricts," leaves the term "materially restricts" undefined in both the bill and the ADA. The Administration "anticipate[d] that this w[ould] result in significant avoidable litigation to develop a clear and universally accepted interpretation." In addition, the Administration had concerns about the bill's proposed changes to the ADA's "regarded as" prong. "Under the bill s definition, an individual qualifies for protection if he or she is treated differently because of a real or perceived impairment, regardless of whether it limits a major life activity," said the statement. That approach "is unnecessary because other provisions of the bill will provide coverage to those inappropriately excluded under current law." The statement can be found at the following website.
A companion bill in the Senate (S1881), introduced by Senator Tom Harkin (D-Iowa), has three cosponsors. A hearing was held on the bill in the Senate Committee on Health, Education, Labor, and Pensions in November 2007. Media reports indicate that the Senate, which is likely to pass the bill, will taken action on it in the near future, probably in the July-August time frame. In a statement, Harkin said: "Today, people across this country with conditions that common sense tells us are disabled are being told that the ADA s protections against discrimination do not apply to them. I congratulate my colleagues in the House for acting so decisively to restore the protections of the ADA to all Americans with disabilities, and I look forward to building on their success by passing a strong bipartisan restoration bill through the Senate in the near future."
For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.
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