Professor Ruth Colker Moritz College of Law The Ohio State University 2008 ADA Amendments Professor Ruth Colker Moritz College of Law The Ohio State University

Basic ADA Requirements The term “disability” means, with respect to an individual – a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

Background to Amendments Sutton Twins “The determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment, including, in this instance, eyeglasses and contact lenses.”

More Background Toyota v. Williams The statutory requirements for defining disability “need to be interpreted strictly to create a demanding standard for qualifying as disabled.”

Some results under pre-2008 case law The following kinds of disabilities were sometimes found not covered by the ADA: Deafness Epilepsy Cancer Learning Disabilities Missing Limbs Visual impairments Cognitive impairments Psychological impairments

Congress’ Response Senate passed S. 3406 by voice vote on September 11, 2008. House cleared S. 3406 by unanimous consent. President George W. Bush signed the ADA Amendments into law on September 25, 2008. The effective date is January 1, 2009.

Congress’ Intent “The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” “It is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Major Life Activities Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Everything in “red” type face was not previously contained in EEOC regulations.

Proposed EEOC Regulations Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working;

Major Bodily Functions For purposes of previous paragraph, “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Previous regulations contained no reference to the concept of a major bodily function.

Proposed EEOC Regulations The operation of major bodily functions, including functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

Importance of Change Cancer Epilepsy Bad backs ADHD HIV

Substantially Limits The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as: Medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics, hearing aids or devices, mobility devices, or oxygen therapy equipment and supplies Use of assistive technology Reasonable accommodations or auxiliary aids or services; or Learned behavioral or adaptive neurological modifications

Importance of Change Hearing aids or cochlear implants High functioning people with learning disabilities Monocular vision (Hallie Kirkingburg)

Proposed EEOC Regulations Add a fifth category: Surgical interventions, except for those that permanently eliminate an impairment.

Eyeglass Exception “The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.” BUT “A covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.”

Where does this leave the Sutton twins?

Regarded as Having Such an Impairment “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this 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.” But “regarded as” prong does not apply to “impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”

What does that mean? Impairment prong is all that matters in a “regarded as” case. Reverses cases that focused on “major life activity of working” as part of that standard. Many more cases will be brought under “regarded as” prong.

Listed Disabilities under EEOC Proposed Regulations In addition to examples such as deafness, blindness, intellectual disability (formerly termed mental retardation), partially or completely missing limbs, and mobility impairments requiring the use of a wheelchair, Autism Cancer Cerebral palsy Diabetes Epilepsy HIV or AIDS Multiple sclerosis and musculardystrophy Major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, or schizophrenia.