Vol. 3, No. 2 | December 2008

Employment Law: A New Americans with Disabilities Act? The ADA, ADARA and ADAAA

by Elizabeth Dillon
Guynn, Memmer & Dillon, P.C.
Salem, Virginia
E-mail:  elizabeth.dillon@g-mpc.com 

Just when you thought you understood the Americans with Disabilities Act (“ADA”) and the case law had clarified some of the ADA’s provisions, a newly revised and substantially changed ADA is likely to be enacted soon.  First, the ADA Restoration Act of 2007 (“ADARA”), SB 1881 and HR 3195, was proposed.  Now, we have the ADA Amendments Act of 2008 (“ADAAA” - a reincarnation of the ADARA) pending before the Senate.  The ADAAA passed in the House in June with a vote of 402 to 17.  The ADAAA is a revised and renamed version of the ADARA that was negotiated by groups representing the disability community and the community of employers.

As a result of the ADA case law, many people, whom everyone had assumed would be protected by the ADA, were not protected.  For example, a gentleman named Carey McClure testified before Congress.  Mr. McClure has facioscapulohumeral muscular dystrophy which affects the muscles of his face, shoulder blades, and upper arms.  He had worked as an electrician for years and was given a conditional offer of employment for a less strenuous job as an electrician in another state.  He sold his house and moved his family only to be told that the company physician found that he could not perform the job.  Because Mr. McClure had so successfully found ways to work with his disability, he was not protected by the ADA.  Cases like Mr. McClure’s led to the introduction of the ADARA and the ADAAA.

Both the ADARA and the ADAAA were designed to overturn several United States Supreme Court cases.  The first line of cases to be overturned by the legislation is the Sutton trilogy.  This line of cases held that mitigating measures must be considered when determining whether or not someone is substantially limited in a major life activity.  In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), severely myopic twin sisters applied for positions as global pilots and could not meet the uncorrected vision requirement.  The Court held that a person must be presently, not potentially, substantially limited, so the twins were not disabled.  The commercial truck driver in Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), was not substantially limited in a major life activity because his hypertension was controlled by medication.  Similarly, in Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), a commercial truck driver with monocular vision was not substantially limited in a major life activity because his brain and body had adjusted for visual problems.

The legislation would also overturn the United States Supreme Court decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002).  The Court held that the terms of the ADA were “to be interpreted strictly to create a demanding standard for qualifying as disabled ….”  Because of this strict construction, “substantially limited in a major life activity” means an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.”

Under the ADAAA, the ADA as we knew it will be significantly expanded.  Courts would not look to mitigating measures to determine if someone is disabled.  (There is an exclusion for eyeglasses and contact lenses.)  Additionally, if a person has a condition that only has periodic effects, then the court must evaluate the condition when it is symptomatic.  The legislation would instruct the courts to interpret the legislation broadly and to include even temporary impairments.  The ADAAA would also redefine “substantially limits a major life activity.”  It defines “substantially limits” as “materially restricts” instead of “prevents or severely restricts,” and it lists major life activities to include lifting, bending, and performing manual tasks.  Previously, such activities were usually not found to be major life activities and persons were rarely substantially limited.

Be prepared for the new ADA.  It is likely on its way soon.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.