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More “Major Life Activities”

Under the ADA, a condition qualifies as a “disability” only if it substantially limits one or more major life activities. Existing EEOC regulations defined “major life activities” to include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). The ADAAA expands on this definition by adding “eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating” to the list and specifying that any “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” is a major life activity. 42 U.S.C. § 12102(2). 

Less Impairment Required

Existing EEOC regulations defined “substantially limited” as “significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j). The ADAAA specifically rejects the EEOC’s regulatory definition—stating it sets “too high a standard”—and specifically directs the EEOC to amend its regulations to be consistent with the findings and purposes of the ADAAA. 42 § 12102)(4). Additionally, the ADAAA provides that an impairment that is “episodic or in remission is a disability if it would substantially limit a major life activity when active.” Id. at § 12102(4)(D).

Mitigating Measures Irrelevant

The ADAAA also reverses the Supreme Court’s decision in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and specifically states that courts must determine whether a condition substantially limits a major life activity “without regard to ameliorative effects of mitigating measures” including medication, magnifying lenses or devices, prosthetics, hearing aids, assistive technology, reasonable accommodations, and “learned behavioral or adaptive neurological modifications.” 42 U.S.C. § 12102(4)(E). Recognizing at least one instance in which this new rule of construction produces an absurd result, the ADAAA provides that a court may consider an employee’s use of ordinary glasses or contacts to determine whether the employee is “disabled” (i.e., limited in the major life activity of seeing). Id. at (4)(E)(ii).

Radical “Regarded As” Expansion

The ADAAA radically expands the definition of “regarded as disabled.” Previously, most courts held that an employer had to believe an employee had an impairment that substantially limited a major life activity for the employee to be “regarded as” disabled. Pursuant to the ADAAA, however, an employee is now “regarded as” disabled—and thus entitled to protection from discrimination—if the employer believes the employee has any physical or mental impairment, regardless of whether the employer believes the impairment limits a major life activity at all. Although employers are not required to accommodate such “perceived” disabilities, they are prohibited from discriminating against an employee on the basis of such a perceived disability. The amended “regarded as” definition thus effectively swallows the definition of “disability” with respect to the ADA’s anti-discrimination provision. (Every employee known to have an actual disability will necessarily satisfy the “regarded as” definition.)

Implications

Although it will take some time to understand the true impact of the ADAAA, it seems almost certain that employers will see a significant increase in requests for accommodation and claims of disability discrimination. Moreover, given the new “regarded as” definition, it is likely that an entirely new class of individuals will assert claims of ADA discrimination. Consider, for example, the employee who is terminated for being “creepy” or “threatening” and then claims that he or she was “regarded as” having a mental impairment. Unless the employer can demonstrate that the employee was in fact a threat to the health and safety of him or herself or others, the employer may face exposure under the amended ADA for alleged “regarded as” disability discrimination.

Questions

The foregoing is not intended as legal advice. If you have specific questions regarding the ADA, workplace accommodations, or claims of discrimination please contact one of our attorneys.