The New ADAAA

In case you missed it, an important event occurred in late September that will substantially benefit individuals with disabilities.

On Sept. 25, President Bush signed into law the Americans with Disabilities Act (ADA) Amendments Act of 2008 (its acronym is ADAAA). This law builds on the original ADA enacted in 1990, and will protect people with disabilities and provide a clearer definition of disability for employers.

Under the new law, the term “disability” is defined to mean, with respect to an individual, “(a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or “(c) being regarded as having such an impairment. The law further defines “major life activities,” and “regarded as having such an impairment.”

The goal of the original ADA was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates were victorious in their efforts to open doors for people with disabilities and to change the country’s outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, combined with the legislative history of the ADA, would provide clear instructions to the courts for broad coverage prohibiting discrimination against people with a wide range of physical and mental impairments.

Unfortunately, the Supreme Court barricaded the door that the ADA had opened by interpreting the definition of “disability” in the ADA to create an overly demanding standard for coverage under the law, and lower courts followed its lead.

Following passage of the ADA, the Department of Justice and the Equal Employment Opportunity Commission issued implementing regulations within a year of the law’s passage. The DOJ regulations with regard to the definition of disability largely paralleled the existing regulations implementing Section 504 of the Rehabilitation Act of 1973 and did not greatly expand on that definition.

By contrast, the regulations issued by the EEOC went into great detail about definition of disability. Both in regulations, and in accompanying guidance, the EEOC extensively defined the term “substantially limits” and introduced a completely new and complex analysis for impairments that might limit only the major life activity of “working.”

As a result, people with a wide range of impairments whom Congress intended to protect — including people with cancer, epilepsy, diabetes, hearing loss, multiple sclerosis, HIV infection, intellectual disabilities, post-traumatic stress disorder and many other impairments — have been routinely found not to be “disabled” and, therefore, not covered by the ADA. Studies show that plaintiffs have lost 97 percent of ADA employment discrimination claims, frequently on the grounds that they do not meet the definition of “disability.”

In late spring 2005, there was a flurry of activity when it appeared that a few business groups might be interested in a negotiated deal on the ADA. An ADA Restoration Drafting Group was convened within the CCD (Consortium for Consumers with Disabilities) Rights Task Force to develop language for a range of fixes to the ADA, including the definition of disability.

In spring 2006, Sen. Tom Harkin, (D-Iowa), one of the original sponsors of the ADA in the Senate, met with members of the disability community to reaffirm his commitment to an ADA “restoration” bill. He urged the organizations to reach consensus on the substance of a bill that the full disability community could support. Through a series of meetings, members of the disability community agreed that the focus of an ADA restoration bill should be on fixing the definition of disability.

On Sept. 29, 2006, the last day of the session for the 109th Congress, Reps. Steny Hoyer (D-Md.) and John Conyers, (D-Mich.), then-ranking member of the House Judiciary Committee, joined Rep. Jim Sensenbrenner (R-Wis.) in cosponsoring H.R. 6258, the first ADA Restoration Act to be introduced in Congress.

In November 2006, the Democratic Party gained control of both the House of Representatives and the Senate. While there was some effort to pass H.R. 6258 during the lame-duck session that followed, that was ultimately not feasible.

On July 26, 2007, the 17th anniversary of the ADA’s passage, Majority Leader Hoyer, Rep. Sensenbrenner, and Sens. Harkin and Senator Arlen Specter, (R-Pa.), introduced companion ADA restoration bills (H.R. 3195 and S. 1881) closely reflecting the draft bill that had been developed by the disability community. On the day of its introduction, H.R. 3195 had 143 cosponsors in the House of Representatives.

After a few hiccups in the negotiations, a final compromise was agreed to by the key Senate offices and by the business and disability communities. On July 31, 2008, a revised version of the ADAAA was introduced as S. 3406. On Sept. 11, 18 years to the week that the Senate passed the original ADA, the Senate unanimously passed the ADAAA.

Reps. Hoyer and Sensenbrenner led the House of Representatives in unanimously passing the ADAAA on Sept. 17. On the same day, President Bush indicated that he looked forward to signing the ADAAA into law, and he did just that on Sept. 25, 2008 — 18 years and two months after his father signed the original ADA.

A specialist in health care legislation, regulations and government relations, Cara C. Bachenheimer is vice president, government relations, for Invacare Corp., Elyria, Ohio. Bachenheimer previously worked at the law firm of Epstein, Becker & Green in Washington, D.C., and at the American Association for Homecare and the Health Industry Distributors Association. You can reach her at 440/329-6226 or [email protected].