United States: The ADA Celebrates Its 25th Anniversary – A Look Back at the Development Of The Act

Last Updated: August 4 2015
Article by Anat Maytal

Twenty-five years ago this week, the Americans with Disabilities Act of 1990 ("ADA") was enacted into law with its stated purpose being "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Title 1 of the ADA specifically prohibited employment discrimination against "qualified" individuals with disabilities.

The ADA created new opportunities and protections for those who faced a long history of discrimination due to unfair stereotypes and assumptions as to how individuals with disabilities can meaningfully contribute to society. In the workplace environment, the ADA provided that an individual can assert a claim for discrimination on the basis of disability if (1) he/she has a disability; (2) he/she is qualified, with or without reasonable accommodation, to perform the essential functions of the position; and (3) the employer took an adverse action against the employee because of his/her disability, or failed to make reasonable accommodations for the employee.

After the ADA was enacted, however, federal courts rarely looked at whether any discrimination actually occurred in the workplace, but rather focused on whether an employee's condition was, in fact, a "disability," which the ADA defined as having: (a) a physical or mental impairment that substantially limits one or more major life activities, (b) a record of such impairment, or (c) being regarded as having such impairment.

At first, the lower courts and Supreme Court narrowly construed the ADA's definition of "disability" such that it actually excluded the majority of individuals that the statute was intended to protect. These decisions allowed employers to successfully fight off disability claims. Beginning with Sutton v. United Airlines, Inc., 527 U.S. 471, (1999) and Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999), the Supreme Court opined that mitigating measures (such as medication or devices) should be taken into account in determining whether a person was substantially limited in a major life activity. In other words, if a certain medication or technological device or apparatus enabled a person with an impairment to function well, that person was often held by a court not to have a disability under the ADA, even if the impairment was the basis for discrimination.

A few years later, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court further narrowed the scope of the ADA by holding that the term "substantially limits" should be interpreted strictly, to create a very demanding standard to qualify as disabled. The Court also ruled that a "major life activity" must be an activity that is "of central importance to most people's daily lives." In addition, it was held that the impairment must also be "permanent or long term."

In response, Congress moved to amend the ADA, and eventually succeeded with the ADA Amendments Act of 2008 ("ADAAA"). This was the most extensive change made to employment law in over a decade, as it sought to clear up confusion and restore the original intent and protections of the ADA. The ADAAA broadened all parts of the "disability" definition without changing the actual language of the disability prongs, and instructed courts that the determination as to whether a condition constituted a disability does not require an exhaustive analysis. The ADAAA further stated that the primary focus in lawsuits brought under the ADA should be whether entities have complied with their ADA obligations, rather than on whether an employee's impairment is a per se disability under the ADA.

The ADAAA changed the landscape of disability claims and analysis, further making it clear that it was no longer necessary for an activity to be "central to everyday life" or "permanent or long term" in order for it to fall within the category of a major life activity. The amendments added extensive lists, including non-exhaustive examples of major life activities, such as seeing, hearing, eating, sleeping, walking, learning, and concentrating. In addition, the ADAAA made it clear that the ameliorative effects of mitigating measures cannot be considered in determining whether an employee has an impairment that substantially limits a major life activity. (The only exception is "ordinary eyeglasses or contact lenses," which may be taken into account).

Three years later, in 2011, the U.S. Equal Employment Opportunity Commission ("EEOC") published new regulations to implement the equal employment provisions of the ADAAA. Among other guidance, the EEOC modified the concept of "substantially limited in working" to be associated with the concept of a "type of work." A type of work may be identified by the nature of the work, e.g., commercial truck driving, assembly line, clerical, or by reference to job-related requirements, e.g., repetitive bending, frequent or heavy lifting. This change made it easier for an individual to prove that he/she is "substantially limited in working." The EEOC also added additional "major life activities" (e.g., sitting, reaching, interacting with others) and listed certain impairments that "consistently will meet the definition of disability" (e.g., deafness, blindness, mobility impairments requiring a wheelchair), as well as temporary, non-chronic impairments that are not disabilities (e.g., common cold, broken bone expected to heal, seasonal allergies).

Summers v. Altarum Institute, Corp., 740 F.3d 325 (4th Cir. 2014) is a fine illustration of the impact of the ADAAA on the landscape of disability claims. In that case, an employee fell while exiting a commuter train on his way to work, fracturing several bones, which meant he would not be able to walk for at least seven months. As a result, he took short-term disability leave. When he subsequently contacted his employer about a plan to return to work by working remotely, the employer fired him. The district court previously dismissed the employee's claims of wrongful discharge and failure to accommodate because he had suffered only a temporary injury lasting less than a year, which the district court did not consider a disability. However, the Fourth Circuit reversed, finding that under the ADAAA, temporary impairments may qualify as disabilities. The court's focus was on determining whether an individual suffers from an impairment (temporary or not) limiting a major life activity, and only then evaluating whether the individual is capable of working with or without a reasonable accommodation..

Indeed, courts across the country have embraced the broad definition of "disability" as articulated by the ADAAA combined with the 2011 EEOC regulations. They have recognized a variety of impairments as a "disability," including, but not limited to alcoholism, bipolar disorder, carpal tunnel syndrome, fibromyalgia, HIV infection, multiple sclerosis, obesity, psoriatic arthritis, and sleep apnea.

Yet, despite these seemingly employee-friendly changes to the definition of "disability" under the ADA, courts now tend to bypass the "disability" analysis altogether to focus instead on the employee's failure to satisfy the second prong, or the "qualified" prong. Here, courts often defer to the employer's judgment as to whether the employee is in fact qualified, or can perform the essential functions of the job. The Second Circuit, for example, has opined that whether a particular duty is an essential function is based largely on "the employer's judgment as to what functions of a job are essential;" and an employer's identification of essential job duties is a business judgment to which "a court must give substantial deference." McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 98 (2d Cir.2009).

According to one empirical study conducted at the University of Minnesota Law School in 2013, whereas employers previously won summary judgment on the "disability" prong, employers now win summary judgment far more often on the "qualified" prong. In the pre-ADAAA cases, courts granted summary judgment to the employer, finding that the plaintiff was not qualified, in 47.9 percent of those outcomes ruling on the qualified issue. The employer win rate among the post-ADAAA cases rose to 69.7 percent, a 21.8 percentage point increase in employer victories.

These numbers make clear that while the ADAAA has greatly expanded the coverage of the ADA, employers are not finding themselves on the losing side of disability discrimination claims as much as was first anticipated with the amendments. Nonetheless, as the ADA and its progeny continue to evolve in the courts, wise employers will not get too comfortable and will: (1) carefully review and update job descriptions to ensure that they accurately identify all essential job functions; (2) ensure that supervisors and human resources professionals are trained on the ADAAA; and (3) handle all disability-related requests on a case-by-case basis, instead of adopting a set of firm guidelines that may work in one instance but not another.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.