Several weeks ago, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA).  The ADAAA, which takes effect January 1, 2009, significantly broadens coverage and rejects the reasoning and standards of several landmark U.S. Supreme Court decisions.  The purpose of the amendments is to move litigation away from the question whether a person is disabled and instead focus on whether discrimination occurred.  This will make it more difficult for employer-defendants to gain summary judgment on ADA claims. 

 

The ADAAA expands the statutory definition of “disability,” which it proclaims was improperly narrowed by the Supreme Court’s holdings in Sutton v. United Airlines, Inc. (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002).  As originally enacted, the ADA defined “disability” as (1) a physical or mental impairment that substantially limits one or more major life activities or (2) having a record of or being regarded as having such an impairment.  It did not define the phrases “substantially limits” or “major life activity.”  The Sutton and Toyota cases interpreted these phrases narrowly, requiring that the ameliorative effects of mitigating measures be considered and mandating that the terms “substantially” and “major” be interpreted strictly. 

The ADAAA changes this approach.  It specifies that the definition of disability “shall be construed broadly.”  While the ADAAA does not define “substantially limits” (early versions of the bill, which defined it as “materially restricts,” were cut), that phrase is to be defined “consistently with the findings and purposes” of the Act, i.e., in favor of broad coverage.  The EEOC’s definition of “significantly restricted” is explicitly rejected in the ADAAA as too narrow.

The ADAAA also defines for the first time the key phrase “major life activity,” providing a non-exclusive list of physical and mental activities and major bodily functions.  It further states that conditions that may be controlled through medications or adaptive devices are to be analyzed without the effects of such ameliorative measures (except in the case of eye glasses or contact lenses).

A new definition of “regarded as disabled” represents another dramatic change.  Under the ADAAA, a person will now meet the requirement of being regarded as disabled “if the individual establishes that he or she has been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”  This is a relaxed standard and a significant departure from current caselaw, which requires a plaintiff to show that he was regarded as having an actual disability, i.e., as having an impairment that substantially limits one or more major life activities.  Now, a person who can link an adverse job action to the perception of a far less severe and less limiting impairment (as long as, according the amendments, the perceived condition lasts longer than six months and is not “minor”) will be able to make out a disparate treatment claim under the “regarded as” prong.  However, the ADAAA states that an employer need not provide a reasonable accommodation to a person who merely fits the “regarded as” definition, thereby clarifying an area that has led to a split among federal appellate circuits.

On a related point, a recently decided federal case addressed the scope of medical records an employer may lawfully request under the ADA.  In Varley v. Highlands School District, a U.S. District Court in Pennsylvania granted summary judgment dismissing the plaintiff-employee’s claim that her employer regarded her as having a mental disability and discriminated when it prohibited her from returning to work.  But the court allowed her to go to trial on her claim that she was improperly required to undergo medical exams and provide a complete medical history.

Varley was a transition coordinator for the school district, working with special education students and assessing their vocational skills.  She had a history of mental health issues, which she had earlier disclosed to coworkers.  She had also told coworkers of a prior suicide attempt, and showed them cuts she had made on her stomach.  In 2004, she had an episode during which she became tearful, could not compose herself, and had to leave work.  Before returning her to work, the school district required that she be evaluated by its psychiatrist and also requested her complete psychiatric records. 

Varley claimed that the inquiries regarding her past medical history were not job-related or consistent with business necessity as required under the ADA.  The school district insisted they were necessary because it had reason to believe she could pose a danger to herself or students.  The court noted the EEOC’s enforcement guidance which states that, while an employer may require an employee to provide documentation sufficient to substantiate that she has an ADA disability, it cannot ask for unrelated documentation – meaning that in most circumstances an employer cannot ask for complete medical records.  Based on lay and expert testimony that Varley was not viewed as a present danger to herself or others, the court concluded that there were viable issues as to whether the school district’s demand for complete records violated the ADA.

Jay C. Boger

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