U.S. HOUSE OF REPRESENTATIVES PASSES

SWEEPING EXPANSION OF THE ADA

On June 25, 2008, the U.S. House of Representatives passed the ADA Restoration Act of 2007 by an incredible 402 yeas to 17 nays.  As currently written, the Restoration Act would dramatically expand the reach and scope of the Americans with Disabilities Act to the detriment of employers.  It has now been placed on the Senate Legislative Calendar and is expected to easily pass without any major revisions.  President Bush has indicated his willingness to sign this legislation but it is unclear what changes, if any, he may insist upon.

In effect, the "Restoration" would greatly expand the pool of "disabled" employees protected from discrimination under the Act.  Under the Restoration Act, courts and administrative agencies are to construe the definition of "disability" broadly instead of narrowly as under current law, and include impairments that are episodic or in remission if that impairment would substantially limit a major life activity when active.  The Restoration Act would also cover employees who have impairments that are routinely corrected with medication and other aids.  These persons are not currently covered by the ADA.

As we briefly summarized in our February Newsletter, under current law, a disability is defined generally as "a physical or mental impairment that substantially limits one or more major life activities," a "record of such an impairment" or "being regarded as having such an impairment."  The courts have narrowly construed this definition to create a demanding standard for qualifying as disabled under the Act.  Thus, a "disability," for purposes of gaining protection under the Act, exists only where an impairment "substantially limits" a "major life activity."

To date, Courts have considered mitigating measures, such as eyeglasses or medication, to determine whether an individual's impairment substantially limits a major life activity.  For example, the Supreme Court has held that, for purposes of the ADA, an individual is not disabled where that individual's impairment is corrected by medication or prosthetics.

However, the Restoration Act, as passed by the House, provides that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the effects of mitigation measures such as medication, medical supplies, appliances, prosthetics etc.  Unlike previous versions of the Restoration Act, the Act as passed by the House does carve out an exception for ordinary eyeglasses or contacts and states that the effects of eyeglasses/contacts shall continue to be considered in determining whether an impairment substantially limits a major life activity.   

The Restoration Act also significantly changes the definition of being "regarded as" disabled.  Under current law, an individual may be "regarded as" having a disability and therefore be protected under the Act from discrimination if the individual establishes that he or she has been subjected to a discriminatory act because of a perceived disability that, if real, would substantially limit one or more major life activities.  Under the Restoration Act, a person will be "regarded as" being disabled regardless of whether the perceived impairment would limit a major life activity."  In other words, an individual need only prove that he or she has a physical or mental impairment and that he or she was discriminated against because of it.  It does not matter if that physical impairment, whether perceived or real, would substantially limit one or more major life activities.

If the Restoration Act becomes law, expect to see more disability discrimination claims.  This is just another reminder that employers must carefully document discipline and discharge decisions.  An employer's diligence in this regard will help to ensure a solid defense if a discrimination claim is filed against you, whether based upon disability or any other protected category.