Originally published in the Winter 2010 Edition of Chamber’s
Congress enacted the ADA Amendments Act, which went into effect last year, for the explicit purposes of providing expansive protections from disability discrimination and reversing U.S. Supreme Court decisions that Congress felt were inconsistent with the goals of the Americans with Disabilities Act. In conjunction with the new law, the Equal Employment Opportunity Commission issued proposed regulations consistent with the idea of expansive coverage.
However, under the West Virginia Human Rights Act,
The essential principle of the new federal law is to construe the legal definition of what constitutes a “disability” broadly in favor of coverage under the Act. In that regard, federal law is moving closer to
The ADAAA purports to clarify the definition of disability, although it remains largely unchanged. That is, under both state and federal law, a disability is 1) a physical or mental impairment that substantially limits one of more major life activities of an individual; 2) a record of such impairment, or 3) being regarded as having such an impairment.
In this regard, the ADAAA has supplied a new definition of what constitutes a physical or mental impairment: any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine, and any mental or psychological disorder, such as an intellectual disability (formerly called mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. In fact, the new law is big on lists like this in an attempt to provide courts with guidance for better future interpretation.
So what doesn’t constitute a disability under federal law? “Temporary, non-chronic impairments of short duration with little or no residual effects.” Examples of those include the common cold; seasonal or common influenza; a sprained joint; minor and non-chronic gastrointestinal disorders; broken bone that is expected to heal completely (
More significantly, the new law provides a new standard for the term “substantially limits.” That is, a restriction no longer needs to be “significant” or “severe” in order to trigger coverage under the federal law, expressly overruling the U.S. Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Now, an impairment only has to substantially limit the performance of a major life activity as compared to most individuals in the general population. Not ironically, Congress wants courts to apply a “common sense standard” and look twice at the impact of an impairment, even if its duration is less than six months. The effects of multiple impairments also may “substantially limit” a major life activity
In addition, the ADAAA requires that the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures other than “ordinary eyeglasses and contacts,” expressly overruling the U.S. Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). Examples of mitigating measures are: medication; medical supplies, equipment or appliances; low-vision devices (excluding ordinary eyeglasses and contact lenses); prosthetics including limbs and devices; hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; assistive technology; reasonable accommodations; auxiliary aids or services; learned behavior or adaptive neurological modifications; surgical interventions, except for those that permanently eliminate an impairment.
Furthermore, the regulations, which are not yet final, “clarify” the definition of “major life activities” as those “basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty.” Examples of major bodily functions, which are somewhat new to the definition, include: immune system functions: normal cell growth; digestive functions; bowel functions; bladder functions; neurological functions brain functions; respiratory functions; circulatory functions; endocrine functions; reproductive function.
Similarly, the Act makes a non-exhaustive list or major life activities: caring for oneself, eating, performing manual tasks, sleeping; walking; seeing; standing; hearing; lifting; reading; working; concentrating; bending; thinking; speaking; communicating; breathing. Indeed, under the ADAAA, work is now officially a major life activity. Addressing inconsistent court rulings, the Act explains that an impairment substantially limits the major life activity of working if it “substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue,” rejecting decisions that require an impairment to substantially limit a “range or class of jobs” in favor of a showing that an individual is unable to perform a “type of work” defined by the nature of the work or the specific job-related requirement.
Also, episodic disorders or those in remission can now be considered as disabilities if they substantially limit a major life activity when active. Examples of these conditions include: epilepsy; hypertension; multiple sclerosis; asthma; cancer; major depression; bipolar disorder; and postraumatic stress disorder.
The one area where state and federal law diverge because of the enactment of the ADAAA is the definition of when an individual is “regarded as” disabled. Specifically, the new federal law prohibits discrimination because of a real or perceived limitation, regardless of whether the impairment was perceived to be substantially limiting a major life activity. On the other hand, the Human Rights Act, following old federal law, requires a showing that the limitation was perceived as substantially limiting a major life activity. Will
So what is the lesson for West Virgniia employers? Employers must continue to think expansively about whether an employee will be considered to be disabled under both federal and state law, as the former moves closer to the latter.
This article was written by Erin E. Magee, Jackson Kelly PLLC. For more information on the author see here.