University Times

Pitt law Dean Mary Crossley said that new regulations under the recently enacted ADA Amendments Act (ADAAA) of 2008 likely will lead to expanded discrimination litigation nationally.

“Because of the impact of previous Supreme Court and lower court decisions narrowly interpreting the ADA, these clarifications could have a significant impact on litigation under the ADA,” Crossley said. “Over the past decade, a large number of suits filed under the ADA have been dismissed before trial on the grounds that the plaintiff did not have a disability.”

From a legal perspective, Crossley maintained, “The big impact of these amendments is that the contested issue in most suits under the ADA will shift away from asking: ‘Is this person disabled?’ to examining whether the covered entity (employer, public accommodation, etc.) discriminated against the person based on disability, whether by subjecting the person to negative treatment or by failing to provide reasonable accommodations or modifications required by the law.”

Legal interpretations of which conditions qualify under the ADA still are evolving, Crossley cautioned. “As a result, courts will be called on more regularly to determine exactly what kinds of discrimination the ADA prohibits and what kinds of reasonable accommodations it requires. That process, which had been largely forestalled by many plaintiffs’ inability to qualify as disabled, should be interesting to follow,” she said.

ADAAA, however, clearly conveys the message that courts should focus more on whether entities subject to the ADA are complying with their obligations and less on whether an individual’s impairment qualifies as a disability under the ADA, Crossley noted, adding that three substantive clarifications in the ADAAA in particular caught her eye.

“These all amend the ADA’s three-pronged definition of disability, which continues to be defined as an impairment that substantially limits one or more major life activities of the individual; a record of such an impairment, or being ‘regarded as having such an impairment,’” Crossley said.

“The first clarification is Congress’s placing the definition of ‘major life activity,’ which previously had been found only in regulations, in the statute itself,” she said.

“As a result,” Crossley explained, “if an impairment substantially limits a major bodily function of a person, it qualifies as a disability regardless of whether it also substantially limits a more traditionally understood activity like walking, hearing or speaking.”

The 2008 amendments also change the meaning of “substantially limits” in a number of ways, Crossley noted.

For example, an impairment’s impact on an individual’s major life activity should be considered without taking into account how so-called “mitigating measures,” such as medication, prosthetics, assistive technology, accommodations and compensatory or adaptive strategies, lessen its impact, she said.

“So, for example,” Crossley said, “a person whose seizure disorder is normally controlled by medications likely would have been found not disabled under the previous Supreme Court precedent because of the medication’s effectiveness, but the ADAAA instructs courts to consider whether the untreated disorder disables the individual.”

Another change applies to the third prong of the disability definition, “regarded as having such an impairment,” by overruling precedent holding that an individual was disabled under this prong only if an entity covered by the ADA mistakenly believed that the individual had an impairment that substantially limited a major life activity, Crossley said.

“Under the ADAAA, now it is enough for the individual to show that he or she has been discriminated against because of perceived impairment, even if the employer or other entity doesn’t believe the impairment substantially limits a major life activity,” she said. “So, for example, if an employer fires someone because of a mistaken belief that the person is infected with HIV, the person — in order to assert a claim of disability discrimination — no longer has to show that the employer also believed that the perceived HIV infection substantially limited a major life activity. Under the ADAAA, it’s enough simply to show that a mistaken belief in the impairment motivated the firing.”

—Peter Hart