ADA Amendments Act of 2008

1. ADAAmendments Actof 2008 American With Disabilities Act, as amended Effective January 1, 2009 PERS/CRCS, 12/08 586-4955

2. Purposes of 2008 Amendment • Restore broad protections • Reject Supreme Court’s view in Suttonthat “disability” should be determined by ameliorative effects of mitigating measures • Reject Supreme Court’s holding in Toyota that ADA requires “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities • EEOC to revise its regulation defining “substantially limits” as “significantly restricted.”

3. Background of Findings • Congress intended ADA to be construed broadly • ADA’s definition of “disability” was based on Section 504 of the Rehabilitation Act of 1973 and was construed broadly in School Board of Nassau County v. Arline • Supreme Court’s decisions in Sutton trilogy and in Toyota Motor Mfg. KY v. Williams construed term “disability” too narrowly • EEOC’s current regulation defining “substantially limits” as “significantly restricted” is inconsistent with Congressional intent by expressing too high a standard.

4. Definition of “Disability” • A physical or mental impairment that substantially limits a major life activity; • A record of such an impairment; • Being regarded as having such an impairment

5. Definition Clarified • “Disability” to be construed broadly • Mitigating measures not to be considered(other than ordinary corrective lenses) • Impairment can be disability even when episodic or in remission

6. Mitigating Measures Include: • Medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc. • Use of assistive technology • Reasonable accommodations • Learned behavioral or adaptive neurological modifications

7. Example: Eyeglasses or Contacts • “Lenses that are intended to fully correct visual acuity or eliminate refractive error” • “Low vision devices” defined as “devices that magnify, enhance, or otherwise augment a visual image” (distinguished from ordinary eyeglasses or contact lenses)

8. Major Life Activities Include:(and are not limited to) • Caring for oneself • Performing manual tasks • Seeing, hearing, eating, sleeping • Walking, standing, lifting, bending • Speaking, breathing, learning • Reading, concentrating, thinking • Communicating and working

9. Major Life Activities also include: Operation of a major bodily function(including and not limited to functions: ) • Immune system • Normal cell growth • Digestive • Bowel • Bladder • Neurological • Brain • Respiratory • Circulatory • Endocrine • Reproductive

10. Regarded as Disabled • Broader definition to cover anyone subjected to an action “prohibited by this Act” because of a real or perceived physical or mental impairment • “Regarded as” excludes impairments that are transitory (less than 6 months) and minor • Individuals “regarded as” disabled are not entitled to reasonable accommodation.

11. Other Provisions • Employer must show that a qualification standard based on uncorrected vision is job-related and consistent with business necessity • “Qualified individual” replaces “qualified individual with a disability” • “Discriminate on the basis of a disability” replaces “discriminate against a qualified individual with a disability because of the disability of such individual” • Effective January 1, 2009 (not retroactive to cases received by EEOC prior to January 1, 2009)

12. Timeline and History • President George H. W. Bush signs ADA July 26, 1990 • EEOC Issues regulations implementing Title I July 26, 1991 • Supreme Court issues decision in Bragdon v. Abbott June 25, 1998 • Supreme Court issues Sutton trilogy June 22, 1999 • Supreme Court decides Toyota Motor Mfg., KY v. Williams January 8, 2002 • National Council on Disability issues “Righting the ADA” December 2, 2004 • Legislation to amend the ADA introduced (anniversary) July 26, 2007 • House passes ADA Amendments Act June 25, 2008 • Senators Harkin and Hatch introduce Senate Bill 3406 July 31, 2008 • President George W. Bush signs ADA Amendments Act of 2008 September 25, 2008 • ADA Amendments Act of 2008 becomes effective January 1, 2009

13. Compromise Bill • ADA Amendments Act negotiated between business and disability groups • Business groups included U. S. Chamber of Commerce, Society for Human Resource Management, and national Association of Manufacturers • Disability groups include Epilepsy Foundation, American Diabetes Association, American Association of People with Disabilities and National Disability Rights Network

14. Source/s Equal Employment Opportunity Commission Honolulu Local Office Christopher Kuczynski, Assistant Legal Council (808) 541-3118 For more information: gwatts@dhs.hawaii.gov Department of Human Services Civil Rights Compliance Office (808) 586-4955