Vol. 85, No. 5, May 2012
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law by President George W. Bush in 2008, with an effective date of Jan. 1, 2009.1 The ADAAA was passed in response to U.S. Supreme Court decisions that, according to Congress, had "created an inappropriately high level of limitation necessary to obtain coverage under the ADA." The ADAAA sought to reinstate a broad scope of protection under the ADA.2 The changes in the ADAAA also apply to the Rehabilitation Act of 1973.
In making these changes, Congress expanded the ADA's definition of the term disability, emphasizing that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."3
The ADA prohibits discrimination on the basis of disability.4 To be protected under the law, an individual must prove a disability or an impairment that "substantially limits one or more major life activities."5 A person may also establish a disability by showing that he or she has a record of such impairment or is regarded as having such an impairment.6 The ADAAA expanded the list of major life activities and clarified that as long as an impairment substantially limits one major life activity, it need not limit others to be considered a covered impairment.7
In addition, Congress rejected the requirement laid out by the U.S. Supreme Court in Sutton v. United Air Lines that courts should consider the ameliorative effects of mitigating measures in determining whether an impairment substantially limits a major life activity.8 Congress also specified that an impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when active.9 Finally, Congress directed the Equal Employment Opportunity Commission (EEOC) to revise its regulations to make it easier for an employee to qualify for protection. Those regulations were recently passed.10
The amendments in the ADAAA were discussed in the context of food allergies in a May 2010 Wisconsin Lawyer article, "A Complex Recipe: Food Allergies and the Law."11 Although a food allergy case has not yet been decided under the new law, several federal district court decisions indicate that courts are taking the congressional mandate seriously and defaulting to an initial finding of disability in a surprisingly broad spectrum of discrimination cases.
Recent Case Law
Although no federal court of appeals has had the occasion to apply the law in a published decision (they refuse to apply it retroactively), many federal district courts have made determinations of disability in cases in which they likely once would have refused to do so. For example, under old ADA jurisprudence, cancer in remission was not often considered a disability.12 A recent Texas case indicates that has changed under the new law. In Norton v. Assisted Living Concepts, an employment discrimination suit, the plaintiff alleged that he was fired for taking a medical leave because he suffered from cancer.13 The employer brought a summary judgment motion alleging that the plaintiff's cancer, in remission at the time of the alleged discrimination, was not a disability under the law.
The court disagreed. Applying the ADAAA, the court reasoned that renal cancer, when active, is an impairment that substantially limits the major life activity of cell growth.14 The court found that whether the cancer was active at the time the plaintiff was fired was immaterial: "[t]herefore, that Norton may have been in remission when he returned to work at ALC is of no consequence."15 The court denied the defendant's motion for summary judgment.
In another case, a North Carolina court put to rest the idea that to be considered a disability, an impairment must substantially impair more than one major life activity and be more than temporary. The court in Feldman v. Law Enforcement Assocs. Corp. reiterated that an impairment need only affect one major life activity to be a disability and dismissed the duration of the impairment as irrelevant in this case.16
In Feldman, two employees brought claims for violations of the ADA – one for wrongful discharge and one for failure to accommodate. One of the employees suffered three neurological episodes, caused by multiple sclerosis, which led him to be absent from work. The other employee suffered a transient ischemic attack (TIA, sometimes called a mini stroke) and spent several weeks recovering and away from work.17 The employer, on motions to dismiss both cases, argued that neither plaintiff made a proper showing of disability because the employees' impairments were temporary and not severe. The court denied both motions.
In a thoughtful and comprehensive opinion, the North Carolina District Court emphasized that the ADAAA was meant to extend broad protection to impaired individuals. With respect to the employee who suffered the episodic flare-ups of multiple sclerosis, the court stated that the ADAAA made it easier for a plaintiff with an episodic condition to establish a disability.18 Further, the court dismissed the employer's argument that the multiple sclerosis did not cause a disability because the employee was able to engage in many activities in spite of the impairment, citing to the ADAAA's language that "'an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.'"19
Major Life Activities
Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The EEOC regulations added reaching, sitting, and interacting with others. 29 C.F.R. § 1630.2(i)(1)(ii).
Major life activities also include the operation of a major bodily function, including functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.
Regarded as Having an Impairment
Being regarded as having an impairment means that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both "transitory" and "minor." 29 C.F.R. § 1630.2(g)(1)(iii).
Transitory is defined as lasting or expected to last six months or less. 29 C.F.R. § 1630.15(f).
A person "regarded as disabled" is not entitled to reasonable accommodation. See Powers v. USF Holland, 2011 U.S. App. LEXIS 24865 at *20 n.7 (7th Cir. Dec. 15, 2011).
As to the TIA, the court acknowledged that it lasted a relatively short time, the impairment was nonchronic, and there was no evidence that the residual effects were permanent. But the court emphasized that Congress intended the ADAAA to provide broad coverage. And although the impairment was relatively short, the effects of the TIA were significant, thereby constituting a disability under the ADAAA.20
Similarly, the court in Patton v. Ecardio Diagnostics LLC found the duration of the impairment irrelevant. In Patton, a Texas court found that the plaintiff's week-long inability to walk because of two broken femurs satisfied the ADAAA's definition of physical disability for purposes of the plaintiff's Family and Medical Leave Act claim.21
Impairments that once were not even considered for disability purposes are now being given serious consideration. In Lowe v. American Eurocopter LLC, the Mississippi District Court found that an obese employee pleaded sufficient facts to allege that she qualified as disabled under the ADA.22 Before passage of the ADAAA, the EEOC's Interpretive Guidance provided that except in rare circumstances, obesity was not a disability.23 The Lowe court noted that the ADAAA changed that, substantially expanding what substantially limits and major life activities mean under the new law. "Based on the substantial expansion of the ADA by the ADAAA, Defendant's assertion that Plaintiff's weight cannot be considered a disability is misplaced."24
Finally, even cases in which there appears to be little evidence of a disability are resulting in initial disability findings for purposes of pretrial motions. In Gesegnet v. J.B. Hunt Transport Inc., a Kentucky district court case, the plaintiff alleged that his bipolar disorder and anxiety constituted disabilities under the ADA and that the defendant discriminated against him when it failed to accommodate him during initial drug testing.25
The Gesegnet court actually found no medical evidence that precisely defined the extent of the plaintiff's disease and the medical limitations resulting from it. "Without a valid medical opinion, courts cannot simply assume that a disease or diagnosis has disabling consequences. The medical forms fall short of what is necessary."26 The court also found the plaintiff's deposition testimony void of discussion regarding the effect of the psychiatric disorders on major life activities. In fact, the court opined that the plaintiff did not have enough evidence to establish a disability. But, "given the broad definition of disability Congress intended," the court assumed the existence of a disability under the ADAAA for purposes of the summary judgment motion.27
Similarly, in Williams v. United States Services Inc., the South Carolina District Court found that the plaintiff's evidence of a disability was "less than persuasive" and "almost exclusively speculative." But in view of Congress's mandates under the ADAAA to apply the law liberally and to impose a light burden on a plaintiff, the court held the plaintiff made a sufficient showing that he was substantially limited in various life activities.28
Disability findings for purposes of motions for summary judgment and to dismiss have also been made with respect to depression (Kinney v. Century Servs. Corp. II; Holland v. Shinseki29), carpal tunnel syndrome (Gibbs v. ADS30), leukemia, heart disease, cancer that is in remission (Chalfont v. U.S. Electrodes31), HIV-positive status (Horgan v. Simmons32), and irritable bowel syndrome (Myles v. University of Penn. Health System33).
Some courts will require more from plaintiffs, particularly as a case proceeds through the legal process. Obviously, once a prima facie showing of disability is made (including all elements of a prima facie case),34 the burden will shift to the defendant, and the case will proceed, requiring more evidence from both parties.
In a recent unpublished opinion, Allen v. SouthCrest Hospital, the 10th Circuit Court of Appeals held that a woman with migraine headaches failed to demonstrate that she was "substantially limited" in performing a class of jobs or broad range of jobs in various classes as compared to most people with comparable training.35 The opinion is unusual, citing to both pre- and post-ADA amendment case law and EEOC regulations.
In Allen, the court quickly determined that the plaintiff's migraines constituted the requisite "impairment" for an ADA claim. But the court found the plaintiff did not meet her burden in proving that the migraines "substantially limited" her ability to work and care for herself. The plaintiff argued that when she had a migraine at work she would have to come home, take medication, and sleep the rest of the night, and thus could not care for herself as she normally would. The court found this reasoning insufficient, stating "[b]ut it was her burden to make more than a conclusory showing that she was substantially limited in the major life activity of caring for herself as compared to the average person in the general population."36 The plaintiff needed to provide additional evidence of activities that she had to forgo because she had to go to bed.37
With respect to the plaintiff's claim that the migraines substantially limited her ability to work, the 10th Circuit went back to pre-ADAAA EEOC regulations that required a plaintiff seeking protection under the ADA to show that he or she was restricted in working in a class or broad range of jobs. Under the old regulations, the inability to work in one job was not enough to make a case for protection. Because the "ADAAA didn't explicitly discuss or modify the definition of the major life activity of working," the court applied these regulations and held the plaintiff failed to show she could not work for a larger class; the plaintiff had provided only evidence that she could not work for a particular employer.38
The 10th Circuit decision is unusual in view of other post-ADAAA decisions. Certainly, the tone does not follow the trend of other courts in liberally applying disability law. In fact, the court engaged in a rather lengthy analysis of the alleged disability, despite Congress's specific mandate to do the opposite.
In Rumbin v. Association of Medical Colleges, a Connecticut district court, in a bench trial, likewise required the plaintiff to provide significant evidence of disability.
In Rumbin, the court determined that an individual's vision problems were not a disability under the ADA or ADAAA for purposes of medical school admission testing.39 In reaching this conclusion, however, the Connecticut court cited Sutton v. United Air Lines, Inc.,40 and applied to the plaintiff's claims pre-ADAAA law requiring a strict standard for disability.41 The plaintiff thus had to show that his ability to see, learn, and read was substantially limited in comparison to the general population as opposed to other test-takers or prospective doctors. The court's requirement that the plaintiff make such a substantial showing at trial seems to contradict the purpose of the ADAAA, which is to reject the "inappropriately high level of limitation necessary to obtain coverage under the ADA."42
In Lewis v. Florida Default Law Group P.L., the U.S. District Court for the Middle District of Florida applied the ADAAA to an employee's claim of discrimination based on the H1N1 – swine flu – virus and found that such a temporary and nonchronic impairment did not constitute a disability.43 The employee argued that her condition, albeit temporary, was significant in that it could ultimately have led to serious complications or death. The court, after an extensive analysis of the new law, determined that the H1N1 virus is not to be considered a disability, because it falls in the category of temporary, nonchronic impairments of short duration originally identified in the draft EEOC regulations.44
The SouthCrest, Rumbin, and Lewis courts placed higher burdens on plaintiffs than courts have done in most post-ADAAA cases. But these are exceptions to what seems to be the current norm in ADA jurisprudence. The EEOC regulations recently promulgated fall on the side of liberal application of the ADAAA and give credence to the majority of decisions that have been issued.
The EEOC recently adopted new regulations in response to direction from Congress in the ADAAA.45 The regulations reflect the expansion of ADA analysis, specifically the congressional mandate to ease the burden on impaired individuals by lessening the standard under the "substantially limited" language previously employed by the EEOC, and by generally simplifying ADA analysis.
For example, the EEOC regulations, in defining major life activities, now contain a list of impairments that might substantially limit a major life activity. In addition to those mandated by Congress, the EEOC has added reaching, sitting, and interacting with others. In addition, the EEOC directs employers that this list is not exhaustive and the test for determining other major life activities should be applied liberally in favor of protection: "In determining other examples of major life activities, the term 'major' shall not be interpreted strictly to create a demanding standard for disability."46
The definition of substantially limits in the EEOC regulations similarly lessens the burden on impaired individuals and contains provision after provision ensuring that the employee's burden is light. Nine rules of construction are to be used when determining whether an impairment substantially limits an individual in a major life activity. These include the following:
"(j)(i) The term 'substantially limits' shall be construed broadly in favor of expansive coverage....
"(ii)...An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.... Nonetheless, not every impairment will constitute a disability within the meaning of this section.
Tess O'Brien-Heinzen, U.W. 1993, is an associate at Boardman & Clark LLP, Madison, practicing in school law with an emphasis on the ADA, and in general litigation.
"(iii) The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment 'substantially limits' a major life activity should not demand extensive analysis.
"(v) The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis."
These rules of construction provide clear direction to employers to apply the law in favor of disability protection.47
Although still relatively new, the ADAAA is making a big impact. Case law to date from federal district courts in a variety of states indicates this new law will provide broad protection to individuals with impairments of all types and severity levels. Certainly, it will ensure that the majority of litigants make it past the pretrial motion stage. Cases involving circumstances in which initial determinations of disability would not have been possible under old ADA law are now being decided in favor of plaintiffs.
As a practical matter, advocates for individuals should take heart that the tide seems to be turning in their favor. As long as an individual can make an initial showing of an impairment that limits a major life activity, he or she should be able to establish an initial determination of disability for purposes of an ADA claim. Advocates for employers or others facing ADA claims should take heed that their burden in challenging a disability determination on grounds that previously had merit – the duration of the impairment, whether the impairment was in remission, whether it was episodic – has become much heavier.
1 Pub. L. No. 110-325, 122 Stat. 3553.
2 Id., 122 Stat. at 3554 (citing Sutton v. United Air Lines Inc., 527 U.S. 471 (1999), and Toyota Motor Mfg., Kentucky Inc. v. Williams, 534 U.S. 184 (2002)).
4 42 U.S.C. § 12182(a).
5 34 C.F.R. § 104.3(j)(2)(ii).
6 29 C.F.R. § 1630.2(g)(1).
7 42 U.S.C. § 12102(2)(B), (4)(C).
8 Pub. L. No. 110-325, § 2(b)(2). The ADAAA and the EEOC regulations provide a nonexhaustive list of examples of mitigating measures. Congress created one exception to the rule regarding mitigating measures: the ameliorative effects of ordinary eyeglasses or contact lenses are considered in determining whether an impairment substantially limits a major life activity. 29 C.F.R. § 1630.2(j)(1)(vi), (j)(6). Mitigating measures can be considered for other determinations such as the need for reasonable accommodation.
9 42 U.S.C. § 12102(4)(D).
10 See 29 C.F.R. pt. 1630.
11 Tess O'Brien-Heinzen, A Complex Recipe: Food Allergies and the Law, 83 Wis. Law. 8 (May 2010).
12 See, e.g., Farrish v. Carolina Commercial Heat Treating Inc., 225 F. Supp. 2d 632, 636 (M.D.N.C. 2002).
13 Norton v. Assisted Living Concepts Inc., 786 F. Supp. 2d 1173 (E.D. Tex. 2011).
14 Id. at 1185.
15 Id. See also Hoffman v. Carefirst of Fort Wayne Inc., 737 F. Supp. 2d 976 (N.D. Ind. 2010) (holding that renal cancer is a disability).
16 Feldman v. Law Enforcement Assocs. Corp., 779 F. Supp. 2d 472 (E.D.N.C. 2011).
17 Id. at 481.
18 Id. at 483.
19 Id. at 484 (citing 42 U.S.C. § 12102(4)(C)).
20 Id. at 485.
21 Patton v. Ecardio Diagnostics LLC, 793 F. Supp. 2d 964 (S.D. Tex. 2011); but see Koller v. Riley Riper Hollin & Colagreco, No. 10-2933 (E.D. Penn. Feb. 28, 2012) (holding that facts alleged regarding a tear in plaintiff's anterior cruciate ligament and subsequent surgery did not rise to level of a disability).
22 Lowe v. American Erocopter LLC, 2010 U.S. Dist. LEXIS 133343, 24 Am. Disabilities Cas. (BNA) 40 (N.D. Miss. 2010).
23 See Melson v. Chetofield, No. 08-3683 (E.D. La. March 4, 2009).
24 Lowe, 2010 U.S. Dist. LEXIS 133343, at *25.
25 Gesegnet v. J.B. Hunt Transp. Inc., No. 3:09-CV-828-H (W.D. Ky. May 26, 2011).
26 Id. at 7.
27 Id. Ultimately, the court granted the defendant's motion for summary judgment on the basis that the plaintiff did not request accommodation and the defendant could not infer that an accommodation for disability was necessary. Id. at 11.
28 Williams v. United States Servs. Inc., No. 2:10-1546-RMG-BHH, 2012 U.S. Dist. LEXIS 23079 at *20 (D. S.C. Jan. 31, 2012).
29 Kinney v. Century Servs. Corp. II, 2011 U.S. Dist. LEXIS 87996, *28, 18 Wage & Hour Cas. 2d (BNA) 363 (S.D. Ind. Aug. 9, 2011); Holland v. Shinseki, No. 3:10-CV-0908-B, 2012 U.S. Dist. LEXIS 6788, *20 (N.D. Tex. Jan. 18, 2012).
30 Gibbs v. ADS Alliance Data Sys. Inc., 2011 U.S. Dist. LEXIS 82540, 14 Am. Disabilities Cas. (BNA) 157 (D. Kan. July 28, 2011).
31 Chalfont v. U.S. Electrodes, No. 10-2929, 2010 WL 5341846 (E.D. Pa. Dec. 28, 2010).
32 Horgan v. Simmons, 704 F. Supp. 2d 814 (N.D. Ill. 2010).
33 Myles v. University of Penn. Health Sys., No. 10-4118, 2011 U.S. Dist. LEXIS 142342, *25-26 (E.D. Penn. Dec. 12, 2011).
34 In the employment context, the elements of a discrimination suit are the following: 1) the plaintiff is disabled; 2) the plaintiff is otherwise qualified for the position; 3) the employer knew or had reason to know of the disability; 4) the plaintiff requested an accommodation; and 5) the employer failed to provide an accommodation. Myers v. Cuyahoga County, Ohio, 182 Fed. App'x 510, 515 (6th Cir. 2006).
35 Allen v. SouthCrest Hosp., No. 11-5016 (10th Cir. Dec. 21, 2011).
36 Id. at 11-12.
37 Id. at 12.
38 Id. at 15-18.
39 Rumbin v. Association of Am. Med. Colleges, No. 3:08cv983 (D. Conn. March 21, 2011).
40 Sutton v. United Air Lines Inc., 527 U.S. 471 (1999).
41 Rumbin, No. 3:08cv983 at *17.
42 Pub. L. No. 110-325, § 2(b)(5).
43 Lewis v. Florida Default Law Group P.L., 2011 U.S. Dist. LEXIS 105238, 25 Am. Disabilities Cas. (BNA) 204 (M.D. Fla. Sept. 15, 2011).
44 Id. at *26.
45 29 C.F.R. pt. 1630.
46 29 C.F.R. § 1630.2(h).
47 29 C.F.R. § 1630.2(j)(3)(ii).