Even before it was amended late last year, the ADA provided protection to thousands and thousands of employees with hidden impairments that constitute disabilities. For example, monetary settlements involving claims of disability discrimination because of cancer or a psychological disorder (e.g., depression, manic depressive disorder, anxiety disorder) led the list. Now — with the latest amendments — the number of employees entitled to protection may double or triple. Prior to the amendments, the EEOC categorized disability discrimination charges as falling under 35 specific mental or physical disabilities and five catch-all categories, ranging from alcoholism, allergies and anxiety to depression, epilepsy and cardiovascular impairments. Most of the impairments on the EEOC’s list are mental or physical impairments not readily visible. As discussed below, the ADAAA retains the general definition of disability, but greatly expands its application. Reversing an employer-friendly decision by the U.S. Supreme Court, the ADAAA specifically directs that “the ameliorative effects of mitigating measures” cannot be taken into account in deciding if an individual has a disability, except for ordinary eyeglasses or contact lenses. This means an employee with a condition controlled or corrected by medication, equipment or some other means is likely still considered “disabled” and protected by the act. For example, employees with diabetes or epilepsy whose condition is controlled by medication likely will be considered to have a disability under the ADAAA, even though they are not actually limited by the condition. In addition, the ADAAA has redefined the term “major life activity” by providing a noninclusive laundry list of activities considered “major life activities,” which includes a very broad range of activities from eating, sleeping and bending to learning, reading and concentrating. The ADAAA also makes “the operation of a major bodily function” a major life activity under the ADA. Thus, anyone with a condition that substantially limits even one of these “major life activities” will be protected by the ADA. The ADAAA also makes clear that impairments that are episodic or in remission are still protected disabilities if, when active, they would substantially limit a major life activity. Do not be led by these changes, howApril 2009
ever, to assume that an employee with a known or suspected impairment is disabled. A wrong assumption could lead to charge of disability discrimination for erroneously regarding an employee as disabled. More charges are filed every year by employees claiming to be “regarded as” disabled than by employees with an actual mental or physical impairment. In 2007 alone, the total amount of monetary settlements obtained by the EEOC for “regarded as” claims exceeded $10 million. The ADAAA also expands the protections for employees who are “regarded as” disabled. Under the new amendments, employees are protected by the ADA if their employer regards them as having an impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. The only exception is for a transitory impairment, defined as an impairment with an actual or expected duration of six months or less. Nevertheless, the ADAAA does not require an employer to provide reasonable accommodation to an individual who is “regarded as” disabled, but only to those who have actual impairments that
constitute a disability. As the EEOC statistics quoted earlier indicate, the area of disability discrimination is one that can potentially be very costly for employers. The new amendments to the ADA will likely only increase the costs to employers as more individuals than ever will fall within the act’s protection. Employers who take the time now to become familiar with the ADA and the new amendments, and to train their supervisors and managers, will be in the best position to meet the requirements of the act and to avoid costly discrimination charges. (Betty S.W. Graumlich is a partner and Stacy L. Haney is an associate in Reed Smith LLP’s Richmond off ice. Graumlich specializes in labor and employment law, and Haney‘s practice focuses primarily on commercial litigation, employment law and education law. For more information, you can reach Graumlich at [804] 344-3456 or bgraumlich@reedsmith.com, and Haney at [804] 344-3428 or shaney@reedsmith.com. This article is not intended to provide legal advice. You should consult with an attorney regarding questions or issues that arise in this area.) VAB
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