Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the Americans with Disabilities Act “in favor of broad coverage of individuals” do not apply to actions taken before the effective date of the ADAAA, Jan. 1, 2009, according to a recent decision by the U.S. Circuit Court of Appeals for the District of Columbia.
 
While the July 21, 2009 ruling provides some comfort for employers in relation to pre-Jan. 1, 2009 actions, employers need to take appropriate steps to mitigate disability claim risks for actions on or after the effective date of the ADAAA.

As signed into law on Sept. 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability under the ADA definition.  

Broader definition

The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect Jan. 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

•    Directs the Equal Employment Opportunity Commission to revise that portion of its regulations defining the term “substantially limits;”
•    Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
•    Asserts that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
•    Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
•    Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
•    Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the ADA and generally shall not require extensive analysis.

Court rejects retroactive argument

In Lytes v. DC Water and Sewer Authority, the Court of Appeals considered and rejected the retroactivity argument made by Lytes in his appeal from a trial court’s finding that he was not disabled under the ADA.  

As the ADAAA took effect while his action was pending, Lytes sought to convince the Appeals Court to apply the ADAAA amended definition retroactively. Contending that the ADAAA amendment merely clarified the existing law under the ADA, Lytes argued that the Court should apply the broader definition of disability when considering the legality of his termination from employment in 2004.

Rejecting Lytes’ retroactivity argument, the U.S. Court of Appeals (DC) ruled that the ADAAA amendment of the definition of “disability” under the ADA applies only on a prospective basis based on its finding that Congress had clearly provided that the ADAAA amendments only would apply to post-Dec. 31, 2008 actions.

Accordingly, the Court of Appeals affirmed the District Court’s finding that Lytes termination in 2004 did not violate the ADA, as then effective, because his lack of disabled status under the then-applicable definition of disability meant he was not entitled to accommodation.

In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments. Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits.  

Minimizing exposures

Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

While the Lytes decision indicates that businesses will not be required to defend pre-2009 actions under the amended disability standards enacted by the ADAAA, businesses should prepare to meet new challenges in defending ADA claims arising from actions taken after Dec. 31, 2008.

The ADAAA amendments make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA.  Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes.  

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA.  

Management should exercise caution carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope. This may include impairments correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope.

Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment. Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabled for purposes of the Act.

The big picture

Companies should assume that a greater number of employees with such conditions are likely to use the ADA as a basis for challenging hiring, promotion and other employment decisions. For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Employers also should consider tightening their documentation on their procedures and processes governing the collection and handling of records and communications that may contain information on an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information. The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA.

Cynthia Marcotte Stamer can be reached at Cstamer@CTTLegal.com.

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