Wisconsin Lawyer
Vol. 81, No. 12, December 2008

The ADA Amendments Act of 2008: Redefining Who is Disabled

by John E. Murray

n 1990, Congress passed the Americans With Disabilities Act (ADA). In its statutory findings, Congress identified discrimination against individuals with disabilities as a pervasive problem in employment, housing, and access to public accommodations and services.¹ With the ADA, Congress hoped to provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”²

To achieve the ADA’s stated purpose, Congress enacted a broad definition of what constitutes a disability:

(A) A physical or mental impairment that substantially limits one or more major life activities…;

(B) A record of such an impairment; or

(C) Being regarded as having such an impairment.³

In the years since the ADA’s passage, many federal courts have interpreted this definition narrowly. In Wisconsin, the ADA has become largely irrelevant in the workplace. The Wisconsin Fair Employment Act (WFEA) has been given much broader coverage. State law, therefore, became the primary source of workplace rights for disabled individuals in Wisconsin.

Congress apparently does not agree with the narrow interpretations of the ADA by the U.S. Supreme Court and the Equal Employment Opportunity Commission (EEOC). This year, Congress enacted the ADA Amendments Act of 2008 (the Act) to expand the ADA’s coverage.⁴ In the findings and purpose of the Act, Congress stated that interpretations of the ADA by the Supreme Court and the EEOC had been unduly restrictive and inconsistent with the ADA’s initial design and intent.⁵

The stated purpose of the Act is to restore the ADA as a clear and comprehensive national mandate for eliminating discrimination against a broadly defined class of disabled individuals.⁶ These changes make the ADA’s coverage much more similar to the coverage of the WFEA. President Bush signed the Act on Sept. 25, 2008. It will take effect on Jan. 1, 2009.

In the Act, Congress has clarified and expanded which activities are major life activities under the ADA, when an impairment substantially limits such an activity, and when an individual may be regarded as disabled under the ADA. This article sets out why Congress believed these terms needed clarification, how Congress has modified them, and how these changes alter the scope of the ADA in the workplace.

Major Life Activities

Under the ADA, individuals are disabled if they have a physical or mental impairment that substantially limits one or more major life activities.⁷ When it first enacted the ADA, Congress did not define the term major life activities. Before the ADA took effect, however, the EEOC issued a regulation defining this term to mean “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”⁸

The U.S. Supreme Court subsequently expressed concern that the EEOC’s regulation expanded the ADA’s coverage too far. The Court viewed the ADA as a law designed to protect a discrete group of severely restricted individuals.⁹ The Court stated that to contain the ADA within these boundaries, it was necessary to interpret the ADA’s definition of disability “strictly to create a demanding standard for qualifying as disabled.”¹⁰

The Court created this demanding standard, in part, by narrowly defining major life activities. According to the Court, major life activities should be limited to those “activities that are of central importance to most people’s daily lives.”¹¹ The Court suggested that these activities include only activities that are truly essential to caring for oneself. For example, a person limited in manual tasks such as gripping or holding would be disabled only if she was impaired in her ability to perform those manual tasks essential for her basic care and hygiene.¹² The Court questioned whether work could ever be considered a major life activity.¹³

In the Act, Congress has rejected both the Court’s and the EEOC’s definitions of major life activities. The Act creates a broad statutory definition:

(2) MAJOR LIFE ACTIVITIES –

(A)…[M]ajor 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 – …[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.¹⁴

This definition is significant in several respects. First, it unequivocally establishes work as a major life activity. Second, it recognizes that a manual task, on its own, can be a major life activity even if the manual task is not “of central importance to most people’s daily lives.” However, the provision relating to major bodily functions may be the most significant component of this new definition.

Under the Act’s definition, an impairment or condition has some impact on a major life activity if it affects the normal operation of the body or a normal bodily function. For example, a condition that causes infertility has an effect on the operation of a person’s reproductive system. Under the Act, such a condition can be a disability if it substantially limits the body’s reproductive functions. Similarly, a condition like multiple sclerosis may affect the body’s normal bladder and neurological functions. If the degree of limitation is substantial, such a condition can be a disability.

Substantially Limits

An impairment is not a disability simply because it has some impact on a major life activity. The impairment is a disability only if it substantially limits a major life activity. If Congress had expanded only the ADA’s definition of major life activities, the practical effect of the Act might not be noteworthy. The Act is significant because Congress also expanded the ADA’s definition of substantially limits.

When it enacted the ADA, Congress did not define the term substantially limits. The EEOC filled this void with an elaborate regulatory definition.¹⁵ According to the EEOC, an impairment substantially limits a major life activity if:

• The person is completely unable to engage in the major life activity; or
• The person is significantly restricted in the major life activity when compared to the average person in the general population.

These limitations must be permanent or long-term.

The EEOC created a separate, and much more demanding, standard for evaluating whether an impairment substantially limits the ability to work. The EEOC stated that an impairment substantially limits the ability to work only if it disqualifies an individual from a significant number of jobs for which the person otherwise would be qualified. Under this regulation, an impairment that disqualifies a person from a single job is not a disability. To be disabling, the impairment must create a substantial barrier to the individual’s ability to obtain or maintain employment.

John E. Murray, Iowa 1991, is a shareholder with Simandl & Murray S.C., Waukesha, practicing in labor and employment law with an emphasis on representing employers.  

Once again the Supreme Court further narrowed the EEOC’s definition. First, the Court ruled that an impairment does not substantially limit a major life activity unless the impairment completely prevents, or severely restricts, the ability to engage in the major life activity.¹⁶ Second, if an individual uses medicine, prosthetics, surgery, or other means to cope with an impairment, that person might not be disabled. The Court ruled that the benefits of any medicine or assistance must be considered when determining whether an impairment creates a substantial limitation.¹⁷ By way of example, the Court indicated its belief that a diabetic, who is able to control his condition with insulin, would not be disabled under the ADA.¹⁸

The Court also applied this rationale to individuals who learn to overcome impairments without medicine or artificial assistance.¹⁹ For example, in Albertson’s Inc. v. Kirkingburg, an employee had uncorrectable vision of 20/200 in one eye. Over the years, she had learned to process visual images from her good eye so that she was largely unaffected by this condition. The Court ruled that a person who is able to adapt to a physical impairment in this way is not disabled because she is not substantially limited.

Congress determined that both the Court and the EEOC had adopted an unduly restrictive view of what constitutes a substantial limitation. The Act states that the benefits of medicine, hearing aids, prosthetics, or other assistance must be disregarded when determining if an impairment is substantially limiting.²⁰ An individual is disabled if an impairment would be substantially limiting without this assistance. Now, an insulin-dependent diabetic is disabled if the use of insulin is necessary to function normally. An individual’s ability to overcome an impairment on her own also must be disregarded.²¹ Finally, impairments that are episodic, or in remission, are disabilities if they substantially limit a major life activity when they are active.²²

The Act creates one broad exception to the rule that an individual’s impairment must be evaluated without considering the benefit of medicine or assistance. If a person is able to correct her vision with ordinary eyeglasses or contact lenses, she is not substantially limited in the major life activity of seeing.²³ However, if an employer rejects an applicant or employee because of the individual’s uncorrected vision, the employer must prove that its vision requirement is job-related and consistent with business necessity.²⁴ 

The Act grants three federal agencies – the EEOC, the Attorney General, and the Secretary of Transportation – the express authority to issue regulations that interpret the ADA’s definition of disability.²⁵ Congress has directed these federal agencies, and the courts, to apply this definition liberally. The Act states that this definition “shall be construed in favor of broad coverage … to the maximum extent permitted by the terms of this Act.”²⁶ Congress also has directed the EEOC to develop a regulatory definition of substantially limits that is consistent with Congress’s stated desire for the ADA’s coverage.²⁷

Regarded as Disabled

One of the ADA’s purposes has always been the protection of individuals from stereotypical assumptions about various medical conditions. To achieve this purpose, the ADA protects individuals who are merely regarded as disabled. A person is regarded as disabled if he is mistakenly perceived as disabled, regardless of whether any actual impairment exists.

The Supreme Court’s restrictive definitions of major life activities and substantially limits necessarily narrowed the class of individuals who could be regarded as disabled. An individual could not be regarded as disabled unless that person was mistakenly perceived to have a condition that prevented or severely restricted the ability to engage in activities of central importance to most people’s daily lives. Under this approach, the subjective intent of the decision-maker could be crucial. For example, an employer could believe, mistakenly, that a medical condition disqualified an applicant from a particular job. Unless that applicant could prove that the employer subjectively believed that this medical condition disqualified him from a substantial number of the jobs for which he otherwise would be qualified, the applicant could not prove the employer regarded him as disabled.

By expanding the definitions of major life activities and substantially limits, Congress has expanded the class of individuals who may be regarded as disabled. But Congress did not stop there. Under the Act, a person also is regarded as disabled if an employer rejects that person because the employer mistakenly believes that a condition disqualifies the person from a particular job.²⁸ Similarly, an employee who is diagnosed with a new condition may be regarded as disabled if her employer mistakenly assumes she no longer can handle the rigors of her position. In either of these scenarios, it is not necessary for the disabled individual to prove her employer subjectively believed she was disqualified from a broad range of jobs, or that she was otherwise substantially limited in any major life activity.²⁹

Differences Between the ADA and Wisconsin’s Fair Employment Act

The ADA is not the only statutory protection for disabled individuals in Wisconsin. The WFEA also protects disabled individuals from workplace discrimination.³⁰ The WFEA defines an individual with a disability as a person who:

(a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) has a record of such impairment; or

(c) is perceived as having such an impairment.³¹

Under the WFEA, an impairment makes achievement unusually difficult if it creates a substantial limitation on life’s normal functions or on a major life activity.³² This definition is similar to the ADA’s definition as amended by the Act.

The WFEA has taken a much more liberal approach to determining whether a person is disabled because of the impact of an impairment on the ability to work. Under the WFEA, any condition that limits a person’s ability to perform the duties of a particular job is a disability.³³ It is not necessary to prove that the impairment disqualifies the person from a substantial number of jobs.

It is not yet clear if the Act will expand the ADA to the point that an impairment that disqualifies a person from a single job will be a disability. Congress has firmly stated that work is a major life activity. Congress has directed the EEOC to develop a broad regulatory definition of the term substantially limits.³⁴ Congress also has stated that the determination of whether an individual is disabled should not be a question that requires “extensive analysis.”³⁵ Consequently, it is certainly possible, even likely, that the EEOC will issue a regulation stating that a person is substantially limited in his ability to work if he has an impairment that affects the ability to perform a single job.

Conclusion

In the past, many Wisconsin employers and attorneys have paid little attention to the ADA because its coverage was dramatically narrower than the WFEA’s. Now, the class of individuals protected by the ADA may be virtually identical to the class protected by the WFEA. The number of ADA cases that turn on whether a plaintiff is disabled should decline dramatically. For claims alleging disability discrimination in the workplace, one of the key issues is likely to be whether an accommodation exists that allows the disabled individual to perform her job responsibilities adequately. If such an accommodation exists, the determinative issue may be whether that accommodation imposes an undue hardship on the employer’s operations.

For some time, compliance with the WFEA has required an analysis of the existence of available accommodations and the burden resulting from those accommodations. Now, compliance with the ADA will require a similar analysis. The Act has made the ADA relevant to the management of disabled employees in Wisconsin. It also has made the ADA much more relevant for attorneys representing employers and disabled individuals.

Endnotes

Wisconsin Lawyer