Congress breathes new life into a "disabled" ADA

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November 2008

A series of Supreme Court decisions had, according to Congress, incorrectly "impaired" the Americans with Disabilities Act ("ADA"). So Congress has just attempted to set things right by updating the Act to ensure that it will once again be able to provide a "broad scope of protection." The revised Act which was signed into law September 25, 2008 will become effective January 1, 2009. Be sure your policies, procedures, and legal counsel are ready.

Congress was not happy with the way either the Supreme Court or the Equal Credit Opportunity Commission has dealt with enforcement of the Americans with Disabilities Act ("ADA"). So on September 25th, Congress attempted to set things right by updating the Act to ensure that it will once again provide a "broad scope of protection." The revised Act becomes effective January 1, 2009. It will make it much easier for individuals with a variety of disabilities to sue companies which fail to make reasonable accommodations in either employment or in providing public accommodations to covered individuals.

The September 25th bill begins with a statement that it was passed "To restore the intent and protections of the Americans with Disabilities Act of 1990." The bill next goes on to recite eight separate findings, four of which scold the U.S. Supreme Court for what Congress believes were incorrect decisions which have wrongfully limited the scope of the ADA, and one that chastises the Equal Employment Opportunity Commission for the way in which its implementing rules have incorrectly limited the scope of the Act. The bill then recites six specific purposes of the new Act. Those purposes are:

Reinstating a broad scope of protection to be available under the ADA.
Rejecting the concept that whether or not an impairment substantially limits a major life activity should be determined with reference to the ameliorative effects of mitigating measures.
Reinstating a broad view of the definition of handicap to correct earlier court decisions.
Rejecting standards imposed by earlier court decisions which deemed that the terms "substantially" and "major" in the definition of disability under the ADA should be interpreted strictly to create a demanding standard for qualifying as "disabled."
Making it clear that the primary object of attention in court cases brought under the ADA should be to determine whether entities covered under the Act have complied with their obligations and that whether an individual's impairment is a disability under the Act should not "demand extensive analysis."
Expressing the expectation that the EEOC will revise its regulations to make them consistent with the intent of the Act.

Then, in order to accomplish those purposes, the bill goes on to amend, clarify, and arguably to significantly expand the definition of "disability" under Section 3 of the ADA. Under the revised definition, 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 (as described in paragraph (3) ).

The definition also goes on to provide additional guidance as to the meaning of the above highlighted terms, all of which have a significant impact upon the just updated meaning of "disability" under the revised ADA. You will want to take a fresh look at what it means to be "disabled" under this revised definition. Consider:

That the meaning is deliberately meant to be expansive and not restrictive,
That the concept of "major life activities" is very broad and all inclusive. It includes, but is not limited to, activities such as "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."
That "major life activities" include "major bodily functions" such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."
That an individual meets the definition of "being regarded as having" an impairment if the individual establishes that he or she has been subjected to an action prohibited under the 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."
That an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
That an impairment that is episodic or one that is in remission is still a disability if it would substantially limit a major life activity when it is active.
That determination of whether an impairment substantially limits a major life activity shall generally be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances or assistive technology.

The net effect of these changes to the ADA's definition of "disability" is that many more individuals may seek the "reasonable accommodations" that the Act calls for in connection with providing public accommodations or services or in connection with employment situations. The revised version of the ADA is a class action lawyer's dream law and the prospects for future lawsuits under the ADA have just dramatically increased.

Financial institutions should review policies, practices, and standards relating to the ADA again in view of the now expanded definition of "disability." Be prepared for new requests for reasonable accommodations of disabilities from customers and for new requests for accommodations from employees and from prospective employees. Now is a good time to review all position descriptions to ensure that they include reasonable and complete definitions of physical and mental attributes which are required for each position. Clear standards regarding the physical and mental abilities needed to perform each position in your institution can mean the difference between winning and losing in court.

Make sure your customer contact personnel are aware of the ADA and of its requirements. Public contact employees should be familiar with all forms of assistance your institution is prepared to provide individuals with disabilities. They should be able to respond to questions from the public and should know who to refer questions to with respect to requests for additional accommodations under the ADA.

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