President George H. W. Bush heralded the enactment of the original Americans with Disability Act with a speech on July 26, 1990 in which he stated:
“This is an immensely important day, a day that belongs to all of you. Everywhere I look, I see people who have dedicated themselves to making sure that this day would come to pass: my friends from Congress. . . . and perhaps most of all, everyone out there and others—across the breadth of this nation are 43 million Americans with disabilities. You have made this happen. All of you have made this happen. . .”
President Bush’s reference to “43 million Americans with disabilities” was based on a number included in the legislative history of the act. The United States Supreme Court considered this statistic and it weighed large in their decisions in Sutton v. United Air Lines, Inc., and Toyota Motor Manufacturing, Ky., Inc. v. Williams. The Court considered how to establish parameters on the severity of a disability when reviewing the legislation that established a pool of 43 million protected Americans with disabilities. If the Court defined disability too narrowly, the Act would apply to fewer than 43 million Americans; but if the definition was too broad, it could mean many times more than that number.
In the Sutton decision, the Supreme Court held the ADA did not apply to impairments that only limited the employee from holding a narrow class of jobs. Unless the impairment precluded the employee, without accommodation, from holding a wide variety of occupations, the impairment did not substantially limit a major life activity, and therefore the employee was not a qualified individual with a disability. The impairment of the worker in the Sutton case was 20/200 vision that could be corrected with glasses. Lower courts later interpreting the decision found almost all impairments failed to rise to the level of a substantial limitation of a major life activity.
The Toyota decision was an affirmation of the Sutton reasoning and further held that for an employee to be substantially limited in performing manual tasks, that person must have an impairment that is “….of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.” Following these decisions, courts granted summary judgments in over ninety percent of all cases brought under the ADA. Many then argued that the courts had created a “catch 22” in which employers can fire individuals for having a disability; yet, the employee’s condition does not meet the ADA definition of disability so that there is no ADA violation.
It was truly a rare case when a plaintiff could prove that he or she had a disability that met these threshold tests:
- is permanent or long term,
- is of central importance of most people’s daily lives,
- limits employment in a broad range of occupations, and
- the job at issue can be done with a reasonable accommodation which was denied by the employer.
Bombarded with complaints that the courts had stripped the ADA of its protections, Congress made changes to the ADA, effective January 1, 2009, including the following amendments:
- a legislative direction that the Supreme Court’s definition of “substantially limits” is inappropriately high;
- a statement of legislative intent that extensive analysis should not be required to determine if a person is disabled under the ADA; and
- a mandate for the EEOC to broaden the definition of disability in conformance with the intent of Congress.
Congress did not change the definition of disabled. But, it added the definition of “major life activity” that includes: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Congress also added a definition of “major bodily functions” by adding functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
Congress also added by amendment a mandate that an impairment that limits one major life activity does not need to limit other major life activities to be considered a disability under the Act. A disability that lasts six months is sufficiently permanent to now be under the umbrella of the ADA. Further, a determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, except for ordinary eyeglasses and contact lenses. To understand the importance of this, the most common restriction on physical activity of an employee has been lifting restrictions; e.g. “no more than 30 pounds.” The Seventh Circuit has consistently ruled against plaintiffs claiming disability who were restricted from lifting twenty pounds and more as not meeting the ADA definition of disability. Now, by definition, “lifting” is a major life activity.
What does this mean for an employer? In the last five years, an attorney analyzing a possible ADA violation typically went through a circular line of questions and routinely determined that the condition was not covered by the ADA. Now, however, that attorney will be reluctant to recommend that an employer deny accommodation on the basis that the person fails to meet the definition of disabled under the ADA.
Government employers will be particularly at risk because by law cost is never a factor for government employers in determining reasonableness of accommodation.
We anticipate a substantial amount of litigation following these ADA amendments. All employers should take certain steps to avoid involvement in a test case:
- update your job descriptions;
- make sure the skills, training, licenses, and experience needed to “qualify” for the job are listed;
- specifically state in each job description the “essential functions” of the job;
- don’t assume an impaired individual or employee is unable to do the job;
- require objective evidence or a medical opinion in determining disability;
- give careful consideration to all requests for reasonable accommodation; and,
- before you deny a request, seek counsel.
Please feel free to give me a call to go over the facts and discuss your situation.
Trial courts can seek advice on employment law issues by contacting Brenda Rodeheffer directly at (317) 234-3936 or email her at [email protected].