From Understanding the Americans with Disabilities Act, 3rd edition, Chapter 1
Editor's Note: Because we believe that this recently updated chapter of a forthcoming book could be very important to you, we have opted to include the entire first chapter in a two-part format. Look for Part 2 of Chapter 1 in September.
- Learn how to more fully understand the Americans with Disabilities Act
When dealing with the Americans with Disabilities Act (ADA), it is important to understand the concepts behind it and why the law was enacted. One reason it was enacted was the extreme cost to the federal government of supporting people with disabilities who could be productive members of the work force, especially where employers without undue burden or undue hardship can bear the cost of most reasonable accommodations.1
It is important to discuss the fundamental premise behind the ADA in order to prevent confusion when it comes to applying the law. The ADA is not an affirmative action statute. Instead, its purpose is to enable people with disabilities to be placed at the same “starting line” as those who are nondisabled. The Equal Opportunity Employment Commission’s (EEOC’s) phrase is “equal opportunity to attain the same level of performance as his/her colleagues.”2 In the workplace, it is then up to the employee to demonstrate what he or she can do. In the context of using governmental programs and places of public accommodations, getting the person with a disability to the same starting line gives him or her the opportunity to take advantage of the same services, activities, and businesses everyone else uses.
The starting-line analogy is useful in other respects as well. Plaintiff advocates should find it very helpful, because it appeals to Americans’ sense of fair play. This concept also works very well in educating employees about accommodating a person with a disability. It is quite common for a person without a disability to believe that a person with a disability who is being accommodated is obtaining some sort of advantage. A true reasonable accommodation does no such thing. It simply gives the person with a disability an equal chance by putting all employees at the same starting line.
Finally, the reader needs to keep in mind that the ADA is an extremely broad law. It affects almost all areas of the legal universe in some way. The ADA applies to private employers of 15 or more employees, nonfederal governmental entities of any size, and places of public accommodations. There are also provisions applying to transportation, relay systems for the deaf, and certain miscellaneous provisions, such as those pertaining to retaliation claims.
Because the ADA deals with discrimination against persons with disabilities, perhaps the key definition is that of the word disability. When people think of disabilities, they generally think of persons in wheelchairs or with severe vision impairments. However, the definition of disability under the ADA is far broader. A person has a disability under the ADA if he or she:
- has a physical or mental impairment that substantially limits one or more of life’s major activities;
- has a record of such an impairment regardless of whether he or she currently is substantially limited in a major life activity; or
- is being regarded as having such an impairment.3
Prior to the American with Disabilities Act Amendments Act (ADAAA), which became effective January 1, 2009, there was tremendous litigation over whether a person was substantially limited in a major life activity. The EEOC had a regulation that said that a person with a substantial limitation referred to an individual who was unable to perform, or was significantly limited in the ability to perform, an activity an average person in the general population could perform.4 Under this theory, a person who is deaf does not have the ability to hear compared to an average person, so the person who cannot hear has a disability. However, as mentioned in the last edition of this book, the US Supreme Court’s decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams5 superseded the EEOC regulations on this issue when they held that to be substantially limited in performing manual tasks meant that the person had to have to have an impairment that prevented or severely restricted the individual from of performing manual tasks.6 The Supreme Court reached that conclusion by relying on a standard dictionary in combination with the principle that the ADA as originally written did not give regulatory bodies the right to implement definitional terms of the ADA.7 With some exceptions, the courts extended the Toyota Motor definition to all disabilities.8 The ADAAA overruled the EEOC regulation and Toyota Motor’s holding as to what it meant to be substantially limited in the major life activity. More specifically, the ADAAA specifically states that the EEOC standard, which was far higher than the Toyota Motor standard, was still too high.9 The ADAAA also states that it specifically rejects the standard that Toyota Motor set with respect to what it meant to be substantially limited in a major life activity,10 which as mentioned above that standard was extended by many courts across all disabilities. Finally, as mentioned above, the ADAAA specifically said that regulatory bodies have the authority to implement definitional terms.11 The EEOC has done precisely that. The EEOC in its final regulations implementing the ADA Amendments Act of 2008 has defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population.12
With respect to substantial limitation, the ADAAA also has a couple of other things to say. First, the ADAAA says that, in order to show a substantial limitation, a person does not need to show an impairment impacts more than one major life activity.13 Second, an impairment that is episodic or in remission is still considered a disability if it would substantially limit a major life activity when active.14 This “episodic” language is very significant for people with certain kinds of disabilities. For example, multiple sclerosis can flare up, causing real problem for the sufferer, while at other times it may be quite manageable. There are other disabilities that work that way as well.
Finally, there is one other issue that needs to be addressed with respect to substantial limitation on a major life activity. That is, what if the plaintiff alleges that the major life activity is working? The ADAAA specifically states, as mentioned below, that working is a major life activity. However, there is nothing in the ADAAA stating what it means for working to be substantially limited. Sutton v. United Airlines held that, in order to be substantially limited in the major life activity of working, you have to show that the person is unable to perform a broad class of jobs.15 The EEOC, in its proposed regulations, suggested changing the definition of what it meant to be substantially limited in the major life activity of working. More specifically, the EEOC stated in their proposed regulations that it was now a question of whether the impairment substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue.16 In the final regulations, the EEOC backed down from their proposed regulation. Instead, they took out entirely the discussion of working as a major life activity from the regulations themselves, and instead placed that discussion in the appendix. In the appendix to their final regulations implementing the ADAAA, they pretty much go back to the Sutton standard by saying that, for a person to be substantially limited in the major life activity of working, the individual would have to show that the impairment limits his or her ability to perform a class of jobs or broad range of jobs in various classes, as compared to most people having comparable training, skills, and abilities.17 I have long wondered why so many plaintiff lawyers over the years have argued that their client was limited in the major life activity of working, as many times another major life activity could just as easily be argued, especially now with the ADAAA defining disability in such broad terms. In fact, one wonders in the absence of a very unusual situation, and some do exist, if it would not be malpractice for an attorney to allege working as the major life activity.
It is really not possible to discuss substantially limits without also discussing major life activity. The EEOC never really defined what a major life activity was; rather, they just gave examples.18 In Toyota Motor, the Supreme Court also discussed what a major life activity is. The Supreme Court held that a major life activity is any activity of central importance to most people’s daily lives.19 However, the ADAAA does define what a major life activity is. More specifically, the ADAAA defines a major life activity as:
1) including but not limited to: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and 2) including the operation of major bodily function, such as but not limited to: Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.20,21
Considering how broad the definition of a major life activity is now, it’s hard to believe that whether a person is limited in a major life activity could seriously be an issue anymore. In the unlikely event that a person alleges a major life activity that is not in the list, the question could arise as to whether the central importance to most people’s daily lives is still a standard that is in play. The EEOC in their interpretive guidance to the final regulations implementing ADAAA specifically says that the Toyota Motor standard of whether the major life activity is of central importance to most people’s daily lives is a standard that is no longer in play.22
What if a person takes medicine or uses prosthetic devices to compensate for a disability? Does use of that means to compensate for his disability make the person no longer disabled under the ADA? For example, is a person who has a hearing loss and wears hearing aids not disabled under the ADA? It can be argued that, with the rare exception of fully correctable vision,23 a prosthetic device allows a person with a disability to compensate for the disability rather than cure it. For example, does a person with a substantial hearing loss who wears hearing aids and reads lips have a disability under the ADA? What if a person with 20/200 vision wears glasses, which correct her vision to 20/20 or better? Does that person have a disability? I have a congenital hearing loss of 65–90+ dB hearing loss in both ears, which is in the severe to profound hearing loss range. However, I wear top-of-the-line hearing aids, read lips, and, through hard work on my own, have excellent rhetorical skills. Do I have a disability? Certainly. Absent the hearing aids, I most certainly do; however, I wear my hearing aids all the time except when I am in the shower or sleeping.
Prior to the ADAAA, the answer to the question of whether my deafness is a disability was that it depends, because mitigating measures had to be factored into the calculus as to whether a person had a disability,24 and because of Toyota Motor’s definition of what it meant to be substantially limited in a major life activity, two other perversions were created. First, the combination of Sutton and Toyota Motor created a disincentive for the person with a disability to use mitigating measures. The whole idea of using mitigating measures is to compensate for that disability so that the person can function as close to the way as the nondisabled person does. However, if mitigating measures work, then by definition a person would not be prevented or severely restricted with the use of mitigating measures in performing a major life activity. To discourage people with disabilities from using mitigating measures would seem to be bad public policy. However, it was a conclusion compelled by a reading of Sutton and Toyota Motor. Second, a plain reading of both cases meant that it was entirely possible that a person with a physical impairment using mitigating measures may be protected under the ADA depending on the time of day or the circumstances in which they find themselves. For example, a person with a hearing impairment who uses hearing aids may or may not, depending on the nature of his or her hearing loss, be disabled under the ADA prior to the amendments while he or she wears the hearing aid(s). However, people who wear hearing aids do not wear them all the time. Even people who do wear hearing aids often, such as me, will take them off when they shower or when they go to sleep. Thus, during those times a person is not wearing hearing aid(s), that person would most definitely have a disability under the ADA. Accordingly, a person with a hearing impairment who wears hearing aids, and has a job that requires staying overnight, would be entitled to various accommodations, such as a flashing light for an alarm clock, flashing smoke alarm, flashing door knock, etc., but under the ADA as interpreted by the courts may or may not be entitled to reasonable accommodations during the day, depending on the severity of the loss and the type of hearing aids he or she wears. Such a conclusion may not have been intended by Sutton and Toyota Motor, but nevertheless followed quite logically from the holdings of those cases.
The absurdities raised by the prior discussion have now been erased with the advent of the ADAAA. The ADAAA specifically states that whether a person is substantially limited in a major life activity must be determined without respect to the use of mitigating measures such as:
1) medication, medical supplies, equipment, or appliances, low vision devices (not including ordinary eyeglasses or contact lenses), prosthetics including lens and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen fair play equipment and supplies; 2) use of assistive technology; 3) reasonable accommodation or auxiliary aids or services [which will be discussed later in this chapter is well]; or 4) learned behavioral or adaptive neurological modifications.25
Note that the ADAAA treats eyeglasses and contact lenses quite a bit differently than any other disability when it says that eyeglasses and contact lenses are to be factored into whether a person is substantially limited in a major life activity of seeing.26 The ADAAA also states that any tests requiring an assessment of a person’s uncorrected vision in order to be used must be job-related and consistent with business necessity.27 These provisions of the ADAAA specifically recognize that contact lenses and glasses are unique with respect to compensating for disabilities. In most cases, you could say that contact lenses and glasses generally “cure” the disability. That is simply not the case with other disabilities. In those cases, prosthetic devices and the like only compensate for a person’s disability, not cure it. For example, I still have a 40 dB hearing loss even with hearing aids. Hence, it makes sense that eyeglasses and contact lenses be carved out for unique treatment.
A person with a temporary disability does not have a disability under the ADAAA. However, just how long a temporary disability has to go on to no longer be a temporary disability for purposes of the ADA is far from clear. The EEOC in their final regulations implementing the ADAAA does say that it is possible that a disability could arise even if it lasts, or is expected to last, for fewer than six months.28 The EEOC’s view is that the reference to disabilities that are “transitory and minor” (a natural or expected duration of six months or less and therefore, not a disability),29 which appears in the ADAAA, is restricted to claims alleging that the person was discriminated on the basis of the employer regarding them as having a disability.30
1. See 74 Fed. Reg. 48431, 48434–37 (Sept. 23, 2009).
2. Equal Employment Opportunity Commission’s Enforcement Guidance on Reasonable Accommodations, http://www.eeoc.gov/docs/accommodation.html at 9, no. 9 (1999).
3. 42 U.S.C.A. § 12102 (1) (Westlaw, current through P. L. 112-142 (Excluding P. L. 112-140 and 112-141) approved July 9, 2012.
4. 29 C.F.R. § 1630.2(j) (WestLaw, current through Aug. 2, 2012; 77 FR 46183).
5. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
6. Id. at 196–98.
7. Not giving due deference to regulations will be much harder for a court now because the ADAAA specifically gives the authority to the EEOC and to the Department of Justice to implement definitional terms under the Americans with Disabilities Act. See 42 U.S.C.A. § 12205a) (Westlaw, current through P.L. 112-142 (excluding P.L. 112-140 and 112-141) approved July 9, 2012).
8. Compare Scheerer v. Potter, 443 F.3d 916 (7th Cir. 2006) (holding that Toyota Motor’s definition of substantial limitation extended across disabilities) with EEOC v. Sears, Roebuck and Company, 417 F.3d 789 (7th Cir. 2005) (holding that Toyota Motor’s definition of substantial limitation did not extend across all disabilities, but rather was limited to the major life activity of performing manual tasks).
9. Americans with Disabilities Act Amendments Act, Public Law 110-325 § 2(a)(7),(8).
11. 42 U.S.C.A. at § 12205a.
12. 29 C.F.R. § 1630.2(j)(ii) (Westlaw, current through July 26, 2012; 77 FR 44067).
13. 42 U.S.C.A. § 12102 (4)(c) (Westlaw, current through P.L. 112-142 (excluding P.L. 112-140 and 112-141) approved July 9, 2012).
14. Id. at § 12102 (4)(d).
15. Sutton v. United Airlines, 527 U.S. 471, 491 (1999).
16. See 74 Fed. Reg. at 48,442.
17. Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act and discussion of 29 C.F.R. § 1630.2(j)(5) and (6), http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1630.xml.
18. See 29 C.F.R. at §1630.2(j) (Westlaw, current through Aug. 2, 2012; 77 FR 46183).
19. Toyota Motor, 534 U.S. at p. 198.
20. 42 U.S.C.A. at § 12102(2).
21. In their proposed regulations, the EEOC added to the list of major life activities and included the activities of sitting, reaching, and interacting with others. See 74 Fed. Reg. 48431-01, 48440 (Sept. 23, 2009). In the final regulations, these additions from the proposed regulations remained (See Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act and discussion of § 29 C.F.R. 1630.2(i)(1)(i)., http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1630.xml.
22. Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act and discussion of § 29 C.F.R. 1630.2(i), http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1630.xml.
23. Sutton v. United Air Lines, 527 U.S. 471 (1999).
24. Id. at 482.
25. 42 U.S.C.A. at § 12102 (4)(E)(i).
26. 42 U.S.C.A. at § 12102(4)(E)(ii).
27. 42 U.S.C.A. § 12113(c) (Westlaw, current through P.L. 112-142 (excluding P.L. 112-140 and 112-141) approved July 9, 2012).
28. 29 C.F.R. § 1630.2(j)(ix) (Current through July 26, 2012; 77 FR 44067; see also Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act and discussion of § 29 C.F.R. 1630.2(j)(1)(ix), http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1630.xml.
29. 42 U.S.C.A. at § 12102(3)(B).
30. 29 C.F.R. § 1630.2(j)(ix) (Current through July 26, 2012).