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Law seeks to reverse AD rulings

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The Tampa Tribune

Published: January 16, 2009

On Sept. 24, 2008, President George W. Bush signed the Americans with Disabilities Amendment Act, which became effective Jan. 1.

His father, President George H.W. Bush, signed the Americans with Disabilities Act, or ADA, in 1990. The ADA was designed to provide protections to people with disabilities in the workplace and with regard to public accommodations. As I have discussed in past articles, however, the impact of the ADA had been limited by several U.S. Supreme Court decisions.

With regard to the workplace, the ADA prohibits discrimination against a "qualified individual with a disability" because of the disability in regard to job application procedures, hiring, advancement, discharge, employee compensation, job training and other conditions of employment.

The ADA requires covered employers to provide reasonable accommodations to disabled employees.

An employer may be liable if a disabled employee establishes that he or she had a disability, the employer had notice of the disability, the employee was able to perform the essential functions of his or her job with a reasonable accommodation and the employer failed to provide the reasonable accommodation.

The employer can avoid liability if it can show that the accommodation would impose an undue hardship on the employer.

The new legislation is designed to reverse the U.S. Supreme Court's rulings in a pair of cases, Sutton vs. United Air Lines Inc. and Toyota Motor Manufacturing, Kentucky Inc. vs. Williams. In the Sutton case the Supreme Court ruled that whether an individual was disabled under the ADA required the consideration of mitigating measures in determining if impairment substantially limits a major life activity.

Thus, if mitigating measures such as medication or therapy substantially diminished the impact of the disability, the person might not be considered as disabled and thus entitled to protection under the law.

The Toyota decision required persons claiming protection to show that their disability prevents them from engaging in activities that are of central importance to people's lives and that the disability is permanent or at least long-term.

The Supreme Court also created a more demanding standard for employees to meet. The impact of the two cases was far reaching, and made it almost impossible for an employee to prevail in ADA cases.

The new legislation prohibits consideration of corrective and mitigating measures in determining whether an employee has a qualifying disability.

The new legislation also lowers the standard that employees must meet and requires that the term "disability" be construed in favor of broad coverage for individuals. The legislation, for the first time, defines what constitutes a "major life activity" although the list is not exhaustive.

The definition is important since the test for whether one is disabled is based upon the ability to engage in major life activities. Finally, the new legislation also precludes "reverse discrimination" lawsuits where able-bodied workers allege that they were discriminated against in favor on an employee with a disability.

Randall Love is an attorney with Randall J. Love & Associates, New Port Richey litigation.

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