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Diversity Leadership CouncilThe newsletter of the ISBA’s Diversity Leadership Council

June 2009, vol. 3, no. 1

Checks and balances at work: The ADA Amendments Act of 2008

In my introduction to the paralegal class that I teach, we go over the system of checks and balances in this country. The way the system is supposed to work is that if the U.S. Supreme Court interprets the statute and gets it wrong, then Congress has the option to write legislation that, if signed by the president (assuming no veto), overrules those decisions. It doesn’t happen very often and so when it does it is notable. The Americans with Disabilities Act Amendments Act of 2008 is such an instance. These amendments overrule several United States Supreme Court decisions that had narrowed considerably the scope of the Americans with Disabilities Act of 1990. The amendments also clarify the regulatory authority for implementing the Americans with Disabilities Act of 1998 as well as give the regulators some guidance on what the subsequent regulations might look like. In particular, the following is worth noting:

  1. The EEOC had defined whether a person was substantially limited in a major life activity as occurring when that person is significantly restricted in a major life activity when compared to the average person.1 With the amendments, Congress has made it clear that this standard goes too far and that the regulatory bodies will have to adopt a far more inclusive standard.2
  2. SuttonAlbertson’s3 and Toyota Motor4 have been overruled. More specifically, mitigating measures—whether they be prosthetic devices, medicine the person takes, or something that the body does—are not to be factored into whether a person has a disability, with the exception of eyeglasses.5 Further, Toyota Motor’s determination of what is a substantial limitation on a major life activity is overruled.6 What is unknown at this time is whether Toyota Motor’s definition of a major life activity, an activity being of central importance to most people daily lives,7 is still in effect. The amendments list a variety of major life activities, but that list is not exclusive.8 Thus, should a major life activity not on the list be alleged, it is not known which standard the court would use in deciding whether that new life activity would qualify.
  3. The amendments add major bodily functions as being included in the definition of major life activities, which is nothing more than Congress 

    codifying something very similar to prior regulations.

  4. The requirements set forth by the Supreme Court in Sutton that in order to be regarded as having a disability, the employer must perceive both a physical or mental impairment as well as a substantial limitation on a major life activity,10 has been over- ruled. These amendments make clear that the only issue is whether the employer perceives a physical or mental impairment.11 This is a significant change and will significantly expand the ability of plaintiffs to make, “regarded as” cases. Before, such a case was very difficult to make because in essence it required the plaintiff to convince the court that the subjective state of the employer’s mind was that they perceived a substantial limitation on a major life activity in addition to their perceiving a physical or mental impairment.

  5. Under the original Americans with Disabilities Act of 1990, temporary impairments were not covered, but it was never clear how long the person had to be disabled for the impairment to be temporary. The amendments make clear that an impairment must be expected to last for at least six months or more.12

  6. The amendments suggest that dis- ability discrimination will definitely now turn on whether there was a motivating factor, rather than on whether disability discrimination was the sole cause since “because,” has been stricken in favor of, “on the basis of disability.”13

  7. Even though eyeglasses, as mentioned above, are factored in to whether a person has a disability, the amendments make clear that requir- ing a test assessing uncorrected vision can only be done if it is job related to the position and consistent with busi- ness necessity.14

  8. There are some people that have disabilities that flare up from time to time and when they do, it can be quite debilitating. These people who have disabilities that are episodic or in remission, prior to these amendments, would not have been covered as a person with a disability under the Americans with Disabilities Act. The amendments make clear that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.15

  9. Finally, the amendments give clear authority to both the Department of Justice and to the Equal Employment Opportunity Commission to for- mulate regulations going to the definitions contained within the Americans with Disabilities Act.16 One of the ways, the Supreme Court had narrowed the scope of the ADA in the way that it did was to say that Congress never gave the regulatory bodies any authority over the definition section of the law, and so the Supreme Court felt free to come up with their own definitions.17 Thus, by giving regulatory bodies this authority, the ability of the court to discount regulations as they have previously done is restricted.

In short, these amendments do a great job of restoring the original intent behind the Americans with Disabilities Act of 1990. It will mean more focus on reasonable accommodations and less focus on whether the person has a disability, which was what the ADA was meant to do originally. It also eliminates some of the absurdities inherent in the common law interpretation of the Americans with Disabilities Act. For example, when you combine Sutton with Toyota Motor, you could get a situation whereby a person with a disability might be disabled depending upon the time of day since you had to consider mitigating measures and simultaneously assess whether they were severely restricted or prevented from performing a major life activity. Such a standard ignores that mitigating measures with the exception of eyeglasses in many cases, never cure their disability, rather they only compensate for it. It is also absurd to think that a person has a disability depending upon the time of day. For example, a person with a severe to profound hearing loss who wears hearing aids and functions in the hearing world, under the old system may or may not have a disability during the daytime, but at nighttime, when those hearing aids come out, such a per- son would have a disability. Such an odd conclusion is no longer possible with these amendments.


William D. Goren, J.D., LL.M., is an Instructor and the Paralegal Program Coordinator at South Suburban College, South Holland, Illinois . Mr. Goren has presented and published extensively on the rights of persons with disabilities, including two books on the Americans with Disabilities Act, both published by the American Bar Association . When he is not teaching, he consults on the Americans with Disabilities Act and on the Rehabilitation Act of 1973. Mr. Goren received his Bachelor’s from Vassar college, his J.D. from the University of San Diego, and his LL.M. in health law from DePaul University.

1. 29 C.F.R. § 12102 (2). 2. § 2(A)(8) of the ADA Amendments Act. 3. Sutton v. United Airlines, 527 U.S. 471 (1999); Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999).

4. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

5. §§ 4 (A)(4)(E)(i),(ii) of the ADA Amendments Act.

6. See § 2(b)(4) of the ADA Amendments Act.

7. Toyota Motor, 534 U.S. at p. 198.

8. § 4(a)(2) of the ADA Amendments Act.

9. See 29 C.F.R. § 1630.2 (h).

10. Sutton, 527 U.S. at 489.

11. §§ 2(b)(3),4(a)(3)(A) of the ADA Amendments Act.

12. § 4(a)(3)(B) of the ADA Amendments Act.

13. § 5(a)(1) of the ADA Amendments Act.

14. § 5(c) of the ADA Amendments Act.

15. § 4(a)(4)(D) of the ADA Amendments Act.

16. § 6(a)(2) of the ADA Amendments Act.

17. See Toyota Motor 534 U.S. at 194-98 (2002).

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