Congress recently voted to pass the ADA Amendment Act (“ADAAA”), which brings the ADA back to the standards originally intended by Congress, rather than the legal standards created by several U.S. Supreme Court cases. The President signed the ADAAA into law on September 25, 2008. The ADAAA will become effective on January 1, 2009.
Wisconsin employers have always balanced two radically different disability laws: the Americans with Disabilities Act (“ADA”) and the disability provisions of the Wisconsin Fair Employment Act (“WFEA”). Employers have historically had to make the following distinctions:
- Is the employee disabled under the WFEA, under the ADA or under both laws?
- Must we consider “mitigating measures” taken by the employee to determine a disability?
- What constitutes a “reasonable accommodation” under state law and under federal law?
- Will an employee only be entitled to back pay, attorneys’ fees and costs, or will they qualify for compensatory and punitive damages under federal law?
Employees have “played the odds”, bringing weaker claims under the WFEA and accepting lesser damages along with a lower burden of proof. However, the ADA Amendment Act (“ADAAA”) gives employees greater access to compensatory and punitive damages by lowering the standard they must meet in bringing a case under the federal ADA.
What Changes Will Occur Under the ADA Amendment?
The ADAAA has changed how we consider several key issues in ADA litigation. First, employers may no longer consider mitigating measures when determining whether an employee is disabled. Second, the Act has expanded the definition of whether a medical condition “substantially limits” a major life activity. Third, “major life activity” now has a much more concrete definition, eliminating the need for judicial interpretation. Fourth, the Act has clarified how the courts will view employment testing procedures. Finally, the ADAAA has further addressed when an employee is “regarded as” disabled.
1. Medical Conditions Should Not Be Considered in Their Mitigated State.
Previously, one of the primary advantages to employers litigating under the ADA was that a “disability” must be considered in its mitigated state. The court would consider if an employee was disabled based on his/her use of any kind of aid, such as medication or glasses, to help the individual overcome that disability. If the employee was found to have no limitation on major life activities using these auxiliary aids, he or she was not “disabled” and could not seek protection under the federal law.
The ADAAA specifically states that “the determination of whether an impairment substantially limits a major life activity” (i.e., whether an impairment is a disability) must be made “without regard to the ameliorative effects of mitigating measures.” In other words, an employee’s limitations should be considered without the use of medication, medical supplies or equipment, appliances, prosthetics, hearing aids, mobility devices, assistive technology, learned adaptive behavior, or other reasonable accommodations. Additionally, an employer cannot consider “auxiliary aids and services” such as sign language interpreters, readers, taped texts, or other similar services or actions in determining whether an employee has a “disability.” However, the Act states that use of ordinary eyeglasses or contact lenses should be considered in determining whether impairment substantially limits a major life activity. Simply put, someone will not be considered disabled simply because they wear glasses or corrective lenses.
Congress has also specifically stated that, even if a medical condition is either in remission or episodic, it can qualify as a disability if it would substantially limit a major life activity when active.
2. Substantial Limitation is Expanded.
The ADAAA has lowered the standard for reaching “substantial limitation” when determining whether an individual is disabled. The Supreme Court held in Toyota Motor Manufacturing v. Williams, that “substantially limited” was a “demanding standard” for a plaintiff to meet. In drafting the ADAAA, Congress stated that this standard “has created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” Congress directed the Equal Employment Opportunity Commission (EEOC) to revise its current regulations, which currently defines “substantially limits” as “significantly restricted” to lower the burden for employees seeking protection under the ADA. Until we see the new EEOC regulations, it is difficult to determine the impact this change will have on employers.
3. Major Life Activities are Clarified.
The ADAAA now provides specific examples of “major life activities.” This term was radically expanded by the courts, creating disagreements throughout the circuits as to what was considered a major life activity. By codifying this list, there is some level of standardization throughout the country, while still allowing flexibility for addition. In general, major life activities still include tasks such as caring for oneself, manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. However, the Act has been expanded to include “major bodily functions”, such as functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
4. New Treatment of Testing Requirements.
The ADAAA gives special consideration to vision issues. Employers may not base qualification standards, employment tests, or other selection criteria on an individual’s uncorrected vision. However, the Act creates an exception that testing may be allowed if it is shown to be related to the position and consistent with business necessity.
5. “Regarded as” Claims May Be Limited.
Previously, an employee could claim that he/she was discriminated against on the basis of disability if an employer regarded him/her as disabled. Typically, these cases would arise if the employee had previously suffered from a disabling medical condition but had since fully recovered. Under the ADAAA, an employee cannot bring a “regarded as” claim if it relates to a mental or physical condition that was minor or transitory. The Act defines “transitory” as lasting for six months or less. In other words, an employee may not seek protection under the ADA by claiming that an employer still regards him or her as disabled if he/she had previously suffered from a condition lasting six months or less.
Employees Can Receive More in Damages in Federal Court.
When bringing a disability discrimination claim, employees previously had a difficult choice when deciding whether to bring this claim under the ADA or the WFEA. Under the WFEA, an employee faced a much lower standard and could easily prove that he/she was disabled. However, he/she could only recover back pay, attorneys’ fees, and costs. Under the ADA, an employee could also receive compensatory and punitive damages. However, the plaintiff had a much heavier burden in proving that he/she was disabled. With the amendments to the ADA, an employee can now overcome that difficult obstacle of proving that he/she is disabled under the ADA, allowing access to greater possible damages, including compensatory and punitive damages.
Considering the increased risks of disability discrimination claims, employers should be more vigilant when dealing with potentially disabled employees prior to litigation. Employers should be diligent and cautious when they become aware that an employee suffers from any manner of medical condition. If you determine your employee may be disabled, you should fulfill your obligation of entering into an interactive process with that employee to discuss whether they need reasonable accommodation. By taking this step, you will open lines of communication with your employee and hopefully avoid future litigation.
If you have questions or would like additional information on this new law, please contact your Davis & Kuelthau attorney.