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Thursday, June 26, 2008

House overwhelmingly votes in favor of ADA Amendments Act of 2008

By a margin of 402-17, the House yesterday voted in favor of the ADA Amendments Act of 2008. The New York Times is reporting that the Senate is expected to take similar action soon, but that President Bush is concerned that "it 'could unduly expand' coverage and significantly increase litigation."

The highlights of the bill (the full text of which is available here) are several. It defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
  • Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

All in all, the goal of this legislation is to be lauded: "To carry out the ADA's objectives of providing 'a clear and comprehensive national mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA." These amendments may not necessarily increase litigation, but they will certainly make it more difficult for employers to get ADA cases dismissed on summary judgment.

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