Congress Considers Broadening Definition of “Disabled” Under the ADA

Claiming that the ADA has not been interpreted by the Supreme Court as intended, Representatives Steny Hoyer (D-MD) and James Sensenbrenner (R-WI) are sponsoring the ADA Restoration Act (H.R. 3195) in an effort to broaden the definition of "disability" under the ADA. Proponents of the bill contend that the definition of the term "disability" has been interpreted too narrowly and requires an individual to meet a demanding standard for qualifying as disabled. For example, the current definition of disability has been used to exclude individuals with serious health conditions, such as epilepsy, diabetes, cancer, asbestosis, HIV, muscular dystrophy, and multiple sclerosis from benefiting from the ADA's protections.

The ADA became law in 1990 and was passed to protect individuals with disabilities from discrimination in employment and public life. Currently, the ADA covers Americans with a "physical or mental impairment that substantially limits one or more major life activities."

The ADA Restoration Act essentially would eliminate the "major life activity" limitation, and extend coverage for any physical or mental impairment. Specifically, the Act:

(1) redefines disability as a physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment;

(2) requires that the disability determination be made without considering the impact of any mitigating measures the individual may be using, or whether the impairment is episodic, in remission, or latent; and

(3) shifts the burden of proof from the employee to the employer, by eliminating the requirement that the employee show s/he is able to perform the job in question before receiving appropriate accommodation.

Supporters of the Act assert that this amendment would restore the original intent of the ADA. One thing is clear: the new definition would extend coverage to far more people.

If signed into law, the ADA Restoration Act may present additional challenges to employers. Currently, plaintiffs lose more than 90% of ADA claims, usually on the ground that they cannot meet the definition of "disability" and are consequently not protected by the ADA. The new definition would turn this figure on its head, and permit many more plaintiffs to bring ADA suits. Indeed, it is possible that the amended law would permit anyone in less than perfect health -- people who have minor or temporary impairments -- to bring lawsuits, including people suffering from headaches, small scars, tattoos, knee strains, tennis elbow, or nearsightedness. In addition, the amendments would dilute an employer's ability to provide accommodation to individuals suffering from the most severe disabilities.

If you would like to find out what you can do to voice your opinion about H.R. 3195, or would like more information regarding the ADA Restoration Act, please contact Evan Rosen at 404.869.5325 or [email protected].