Broadening the Disability Definition
By John W. Parry and Amy L. Allbright
John W. Parry is the director of the ABA Commission on Mental and Physical Disability Law and the editor-in-chief of the Mental & Physical Disability Law Reporter . Amy L. Allbright is the managing editor of the Reporter.
The term “disability” was broadened last year when Congress enacted, and President Bush signed into law, the ADA Amendments Act of 2008. Pub. L. No. 110-325 §. 2(b)(1), 122 Stat. 3553, 3554. Congress states in the amendments that the “definition . . . shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of the Act.”
Under the Americans with Disabilities Act, “disability” is defined as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Before congressional changes, courts’ interpretations of the terms “substantially limits” and “major life activities” created a demanding standard for individuals to qualify as disabled. After nearly twenty years, Congress enacted the changes discussed below.
Major life activities. The amendments provide a noninclusive list of major life activities: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working,” as well as “the operation of [any] major bodily function.” All of the listed activities and bodily functions are now considered major life activities under ADA.
Substantially limits. Under the amendments, “the term ‘substantially limits’ [a major life activity] shall be interpreted consistently with the findings and purposes” of this Act. Congress rejected the Court’s interpretation in Toyota Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184 (2002) “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”—as requiring “a greater degree of limitation than was intended by Congress.” Moreover, under the amendments, “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”
Regarded as disabled. The most significant change the amendments make is to the “regarded as” prong of the disability definition. An individual meets this prong by “establish[ing] that he or she has been subjected to an action prohibited under this 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.” Accordingly, individuals are covered under ADA based on actual or perceived impairments, whether or not these impairments limit or are perceived to limit a major life activity. However, the amendments clarify that those entities covered by ADA (e.g., employers and businesses) do not have to provide reasonable accommodations or modifications to individuals who are regarded as disabled.
Nonetheless, individuals with “transitory and minor” impairments continue to be excluded from coverage; “transitory” means “an impairment with an actual or expected duration of 6 months or less.” By contrast, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” In other words, episodic conditions such as diabetes and many severe mental disorders should be assessed in their active states, rather than when the symptoms are less severe or controlled by treatment.
Mitigating measures. Finally, while the amendments retain the “actual” prong of the disability definition—“a physical or mental impairment that substantially limits one or more major life activities of such individual”—Congress specified that going forward “a determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” Mitigating measures include medication, equipment, devices, prosthetics, and auxiliary aids and services, but not “ordinary eyeglasses or contact lenses.”
This is an abbreviated version of the article that was published in the September-October 2008 issue of the Mental & Physical Disability Law Reporter . To view the entire article, please go to the ABA Commission on Mental and Physical Disability Law‘s Web site at www.abanet.org/disability/resources/news.shtml.
READY RESOURCES
  • Disability Discrimination Law, Evidence and Testimony:  A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals. 2008. PC # 4410202. Commission on Mental and Physical Disability Law.
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