Jul 25, 2008

ADA Amendments? Not So Fast

The ADA Amendments Act (the ADAAA), which would overturn several Supreme Court cases that limited the application of the Americans with Disabilities Act, passed in the House last month and is now before the Senate. The ADAAA has widespread support from employee and disability rights advocacy groups and employer advocates -- rarely do you see legislation supported by the ACLU, the Leadership Conference on Civil Rights, the NAACP, The Society for Human Resource Management, and the Chamber of Commerce. But the price of this broad coalition might be coming due now, as the Senate tries to parse the compromise language used in the ADAAA.

An overriding goal of the legislation is to make sure that serious conditions and diseases qualify as disabilities under the law. Here are some of the changes the ADAAA would make:

  • Prohibit consideration of "mitigating measures" when determining whether someone has a disability. The Supreme Court has held that medications or assistive devices a person uses to control or diminish the effects of a disease or impairment must be taken into account when determining whether that person has a disability. For example, someone whose epilepsy is controlled by medication could be determined not to have a disability. The ADAAA would reverse these holdings and require courts to look at the person's condition in its unmitigated state when deciding whether he or she has a disability.
  • Include certain bodily functions as major life activities. In the past, some serious diseases (including certain types of cancer) were not considered "disabilities" under the ADA because they did not yet substantially affect a major life activity. The ADAAA provides that major bodily functions -- for example, the proper functioning of the immune system, cell growth, brain, and respiratory system -- are major life activities. 
  • Include impairments that are episodic or in remission. The ADAAA provides that conditions that would be disabling when active count as disabilities, even if they do not currently substantially limit a major life activity. This provision would cover serious conditions that have disabling flare-ups, such as certain types of epilepsy or multiple sclerosis, and cancers that are in remission.
  • Redefine the "substantially limits a major life activity" standard. The ADAAA says that a condition or impairment is a disability if it "materially restricts" a major life activity. This is the compromise language that is currently under discussion in the Senate.

As originally introduced, the legislation (then called the ADA Restoration Act) would have gotten rid of the "substantially limits" language altogether, and stated simply that a disability is a physical or mental impairment. The Supreme Court has interpreted "substantially limits" to require a severe restriction. The language of the ADAAA -- that the condition must "materially restrict" a major life activity -- is a compromise intended to cover those with serious conditions while excluding minor or temporary impairments.  

Senator Harkin, one of the Senate sponsors of the ADA 18 years ago, has expressed concerns about how this language will be defined by the courts. He has indicated that, although he wants the Senate to quickly pass similar legislation, the "materially restricts" language may need to be further clarified in the Senate's version of the bill.  

Lisa Guerin