28 CFR Parts 35 and 36 Amendment of ADA Title II and Title III Regulations To Implement ADA Amendments Act of 2008 - Final Rule

IV. Summary of the ADA Amendments Act of 2008

The ADA Amendments Act restores the broad application of the ADA by revising the ADA’s ‘‘Findings and Purposes’’ section, expanding the statutory language regarding the meaning and interpretation of the definition of ‘‘disability,’’ providing specific rules of construction for interpreting that definition, and expressly superseding the standards enunciated by the Supreme Court in Sutton and Toyota and their progeny.

First, the ADA Amendments Act deletes two findings that were in the ADA: (1) That ‘‘some 43,000,000 Americans have one or more physical or mental disabilities,’’ and (2) that ‘‘individuals with disabilities are a discrete and insular minority.’’ 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers); see also Public Law 110–325, sec. 3. As explained in the 2008 Senate Statement of the Managers, ‘‘[t]he [Supreme] Court treated these findings as limitations on how it construed other provisions of the ADA. This conclusion had the effect of interfering with previous judicial precedents holding that, like other civil rights statutes, the ADA must be construed broadly to effectuate its remedial purpose. Deleting these findings removes this barrier to construing and applying the definition of disability more generously.’’ 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers).

Second, the ADA as amended clarifies Congress’s intent that the definition of ‘‘disability’’ ‘‘shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.’’ 42 U.S.C. 12102(4)(A).

Third, the ADA as amended provides an expanded definition of what may constitute a ‘‘major life activity,’’ within the meaning of the ADA. 42 U.S.C. 12102(2). The statute provides a non-exhaustive list of major life activities and specifically expands the category of major life activities to include the operation of major bodily functions. Id.

Fourth, although the amended statute retains the term ‘‘substantially limits’’ from the original ADA definition, Congress set forth rules of construction applicable to the meaning of substantially limited that make clear that the term must be interpreted far more broadly than in Toyota. 42 U.S.C. 12102(4); see also Public Law 110–325, sec. 2(b)(5). Congress was specifically concerned that lower courts had applied Toyota in a way that ‘‘created an inappropriately high level of limitation necessary to obtain coverage under the ADA.’’ Public Law 110–325, sec. 2(b)(5). Congress sought to convey that ‘‘the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.’’ Id.

Fifth, the ADA as amended prohibits consideration of the ameliorative effects of mitigating measures such as medication, assistive technology, or reasonable modifications when determining whether an impairment constitutes a disability. 42 U.S.C. 12102(4)(E)(i). Congress added this provision to address the Supreme Court’s holdings that the ameliorative effects of mitigating measures must be considered in determining whether an impairment substantially limits a major life activity. Public Law 110–325, sec. 2(b)(2). The ADA as amended also provides that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. 42 U.S.C. 12102(4)(D).

Sixth, the ADA as amended makes clear that, despite confusion on the subject in some court decisions, the ‘‘regarded as’’ prong of the disability definition does not require the individual to demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. 42 U.S.C. 12102(3). With this clarifying language, an individual can once again establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because mental impairment. The ADA Amendments Act also clarifies that entities covered by the ADA are not required to provide reasonable modifications to policies, practices, or procedures for individuals who fall solely under the regarded as prong. 42 U.S.C. 12201(h).

Finally, the ADA as amended gives the Attorney General explicit authority to issue regulations implementing the definition of ‘‘disability.’’ 42 U.S.C. 12205a.