THE AMERICANS WITH DISABILITIES ACT OF 1990 - AMENDED

The Americans with Disabilities Act Amendments Act of 2008 (ADA Amendments Act)[1] became effective on January 1, 2009, and it rejected specific holdings of the U.S. Supreme Court in Sutton v. United Air Lines[2] and Toyota Motor Manufacturing, Kentucky v. Williams.[3]

The purposes of the ADA Amendments Act[4] are:

 

(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA;

 

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with regard to the ameliorative effect of mitigating measures;

 

(3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), with regard to the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

 

(4) to reject the standards enunciated by the Supreme Court in Toyota Manufacturing, Kentucky v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in a major life activity under the ADA “an individual must have an impairment that prevents or restricts the individual from doing activities that are of central importance to most people’s daily lives”;

 

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184 (2002), for “substantially limits,” and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that 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; and

(6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with the Act, including the amendments made by this Act.

 

Changes to the rules of construction regarding the definition of disability:[5]

 

(A) The definition of disability in this chapter will be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by this chapter.

 

(B) The term “substantially limits” shall be interpreted consistently with findings and purposes of the ADA Amendments Act of 2008.

 

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

 

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

 

(E)

(i) 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

 

(I) medication, medical supplies, equipment, or appliances, low vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

 

(II) use of assistive technology;

 

(III) reasonable accommodations or auxiliary aids or services; or

 

(IV) learned behavioral or adaptive neurological modifications.

 

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether impairment substantially limits a major life activity.

 

(iii) As used in this subparagraph

 

(I) The term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

 

(II) The term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

 

EFFECTS OF THE ADA AMENDMENTS ACT ON THE BREATHING DISABLED

 

1. Ameliorative measures

 

Congress specifically rejected the requirement enunciated by the Supreme Court[6] that whether an impairment substantially limits a major life activity is to be determined with regard to the ameliorative effect of mitigating measures.[7]

 

Moreover, Congress specifically excepted the ameliorative effects of ordinary eyeglasses and contact lenses from its requirement that ameliorative measures not be considered in determining whether an impairment substantially limits a major life activity.[8]

 

Under the rules of statutory construction, once Congress has demonstrated within a statute that it knows how to make an exception to the statute it cannot be assumed that Congress intended to make other exceptions within the same statute.[9]

 

Therefore, it cannot be assumed that Congress intended to except any of the measures used to correct or mitigate the effects of asthma or other breathing impairments from its requirement that ameliorative measures not be considered when determining whether an impairment substantially limits a major life activity.

 

2. Substantial limitation of major life activities

 

One of the most important changes is the rule that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.[10]

 

The term “substantially limits” is only defined in Title I of the ADA but terms that are not defined in Title II and Title III may take their meaning from Title I.[11]

 

The term “substantially limits” means:

 

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.[12]

 

The U.S. Supreme Court has held that:

 

To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs.[13]

 

Also, the U.S. Supreme Court has held that:

 

But Sutton did not suggest that a class-based analysis should be applied to any other major life activity other than working. Nor do the EEOC regulations. In defining “substantially limits,” the EEOC regulations only mention the “class” concept in the context of the major life activity of working. . . . Nothing in the text of the Act, our previous opinions, or the regulations suggests that a class-based framework should apply outside the context of the major life activity of working.[14]

 

However, prior to the ADA Amendments Act, federal courts have applied the “broad class of jobs” analysis that is applicable only to the major life activity of working to asthmatics that alleged that their major life activity of breathing was substantially limited.[15]

 

The ADA Amendments Act makes it extremely clear that asthmatics and other individuals with breathing impairments are not required to be substantially limited in any major life activity other than breathing in order to be an individual with a disability.

 

3. Activities of central importance to people’s lives

 

Congress rejected the holding that to be substantially limited in a major life activity under the ADA “an individual must have an impairment that prevents or restricts the individual from doing activities that are of central importance to most people’s daily lives.”[16]

 

Jeffrey v. Ashcroft[17] is an example of a case overruled by the ADA Amendments Act of 2008. In Jeffery v. Ashcroft, the defendant asserted that Father Jeffrey was not substantially limited in the major life activity of breathing as a matter of law because he could perform his pastoral duties and he could walk as a means of exercise, he could work, he could drive, he could take care of himself, and he could otherwise perform the functions required for daily living.[18]

 

Also, prior to the ADA Amendments Act, in respiratory impairment cases, federal courts have held that evidence that a person participated in recreational activities undermines a finding that the person is handicapped or disabled under the Rehabilitation Act and the ADA.[19]

 

The ADA Amendments Act makes it extremely clear that the ability to do activities of central importance to people’s daily lives does not determine disability.

 

4. Episodic impairments

 

Congress stated that “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”[20]

 

Congress rejected the line of court cases that have held that even severe symptoms which are episodic do not constitute a substantial limitation on a major life activity. For example, in EEOC v. Sara Lee Corp.,[21] the appellate court found that a plaintiff who suffered weekly epileptic seizures which caused shaking, kicking, salivating, and, on at least one occasion, bedwetting, did not constitute a substantial limitation on a major life activity because holding “that a person is disabled whenever that individual suffers from an occasional manifestation of an illness would expand the contours of the ADA beyond all bounds”.[22]

 

5. Primary object of attention in cases brought under the ADA

 

Congress stated that is was 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.

 

6. Disability is not determined by choice

 

Under the ADA Amendments Act, Congress finds that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society.[23]

 

However, even though the U.S. Supreme Court has held that “In the end the disability definition does not turn on personal choice,”[24] federal courts have held that individuals with breathing impairments were not individuals with disabilities because they elected not to enter facilities that permitted smoking.

 

For example, in Rhoads v. F.D.I.C.,[25] the U.S. Court of Appeals stated “Although Rhoads was sometimes exposed to cigarette smoke outside of the workplace—such as in shopping malls and restaurants—she would quickly leave those establishments once she noticed the preliminary signs of exposure, e.g., a stuffy nose, sore throat, and tight chest.”[26]

 

Also, in Homeyer v. Stanley Tulchin Associates, Inc.,[27] the U.S. Court of Appeals for the Seventh Circuit held that it may be true that where the major life activity of breathing is only affected at work then it should only be analyzed under the major life activity of working.[28]

 

But, under the Rehabilitation Act of 1973, the U.S. Court of Appeals for the Seventh Circuit held that:

 

We reject the district court’s suggestion that McWright’s claim was defective because the accommodation she requested “was not related to any specific condition of her work.” . . . The Rehabilitation Act calls for reasonable accommodations that permit handicapped individuals to lead normal lives, not merely accommodations that facilitate the performance of specific employment tasks.[29]

 

Under Title III of the ADA, 42 U.S.C. § 12188(a)(1) provides, in pertinent part:

 

Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.

 

Citing 42 U.S.C. § 12188(a)(1), the U.S. Court of Appeals for the Ninth Circuit held that:

 

Congress specifically intended that Teamsters “futile gesture” reasoning be applied to ADA claims. Thus, under the ADA, one a plaintiff has actually became aware of discriminatory conditions existing at a public accommodation, and is thereby deterred from visiting or patronizing that accommodation, the plaintiff has suffered an injury. So long as the discriminatory conditions continue, and so long as the plaintiff is aware of them and remains deterred, the injury under the ADA continues. (citations omitted).[30]

 

Therefore, it is obvious that Congress did not intend that disability be determined based on the fact that individuals with breathing impairments choose not to enter a facility where they would be adversely affected by second hand smoke.

 

THE EFFECTS OF THE AMENDED AMERICANS WITH DISABILITIES ACT ON THE BREATHING DISABLED

 

Disparate treatment and disparate impact discrimination

 

The U.S. Supreme Court has held that “Both disparate-treatment and disparate-impact claims are cognizable under the ADA.”[31]

 

Surmountable barrier discrimination (the duty to make a reasonable accommodation)

 

Surmountable barrier discrimination, the duty to make a reasonable accommodation, applies only to employers under Title I of the ADA.

 

Prepared by:

 

Billy Williams

Executive Director

GASP of Texas

http://www.gaspoftexas.com/

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu/.

 

Additional information is available at: http://www.ada.gov/

and also from the Northeastern University School of Law at:

http://tobacco.neu.edu/tobacco_control/resources/ETS/adainfo1.htm.

 

DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. Users of this information do so at their own risk.