I Know What You Did Last Summer…Congress

While the rest of us were getting ready for summer vacation, Congress took aim at the Americans with Disabilities Act (ADA). The ADA has not seen significant legislative modification since it was originally signed into law in 1990. That looks likely to change with very little fanfare, based on what Congress did this summer. In June, the U.S. House of Representatives passed the ADA Amendments Act of 2008 (ADAAA) by an overwhelming vote of 402-17.  Just days later, the Senate version of the bill had 56 co-sponsors and over the past two weeks, more than a dozen additional senators have signed on. The White House was quoted as “strongly supporting” the intent and changes proposed by the House version of the bill. As a result, when Congress reconvenes after summer break, it is highly likely that some version of the ADAAA will be passed and sent to the president’s desk. If the ADAAA is enacted, the proposed effective date is January 1, 2009.

The overall purposes of the ADAAA are to redefine what is meant by “disability” and “impairment” under the ADA and to add a new standard for determining when an “impairment” is properly viewed as “substantially limiting a major life activity.”

One of the key criticisms of the ADAAA is that it is clearly intended to undercut several U.S. Supreme Court cases that have been decided since 1999, which have limited the definition of who is considered “disabled” under the ADA. The ADAAA will potentially open the protections of the ADA to a much larger group of people. A related criticism is that the ADAAA redefines the phrase “substantially limits” as “materially restricts,” without providing any definition for the new phrase. The legislation would also prohibit courts from considering any “mitigating measures” in determining whether an individual has a “disability” under the ADA.  So far, the only exceptions would be eyeglasses or contact lenses.

We'll keep you informed as the ADAAA progresses through Congress this fall.

Paul Sinclair is a partner at Ice Miller LLP and works with employers to solve employment related problems and resolve disputes. In addition to counseling clients, he handles all aspects of employment related legal claims (EEOC, state agencies and lawsuits) on behalf of employers. Paul also negotiates collective bargaining agreements and handles arbitrations on behalf of management.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.