Amended disabilities act widens protection.

When George H.W. Bush signed the Americans with Disabilities Act on June 26, 1990, congressional findings stated that 43 million Americans had disabilities. Over the course of the next 18 years, it appeared that 43 million was a gross over-estimate. Many employees lost ADA cases based on findings that they had not shown a legal disability. Employee-plaintiffs won approximately 3 percent of the ADA cases they filed.

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Disability rights completed a full circle on Sept. 24, 2008, when George W. Bush signed the Americans with Disabilities Amendments Act of 2008. Effective Jan. 1, 2009, the ADAAA protects many people the ADA did not.

"Interactive Process for Hiring the Disabled" (Policy & Practice, September 2007) discussed steps an employer should take to reasonably accommodate a disabled employee. Now that the ADAAA is in effect, providing reasonable accommodation is more important than ever before.

The ADA Tightrope

In passing the ADA, Congress intended to protect persons with disabilities from discrimination, just as it protects against sex discrimination. But while there are only two sexes, disability is a matter of degree. Thus, the ADA included a test to determine coverage. To be protected, an individual had to be both "qualified" for employment and "disabled."

The dual qualified and disabled requirement was a tightrope walk. Either an individual performed her job so well that she was not disabled, or she was so hindered by her disability that she was not qualified. Cases fell off one side of the tightrope or the other.

Until 1999, some employees could cross the tightrope because they were evaluated for disability without considering medication, canes, crutches or hearing aids. A bi-polar employee who could function very well on medication was also protected against discrimination based on the stigma attached to bi-polar disorder.

But the Supreme Court threw out the mitigating measures regulation in Sutton v. United Airlines Inc., 527 U.S. 471 (1999). Paradoxically, after Sutton, a worker with insulin-controlled diabetes might not be legally entitled to a work break to take an insulin shot. Because insulin controlled the diabetes most of the time, the employee would not be considered disabled. Sutton also set a high bar for proof that a plaintiff was legally protected by virtue of being "regarded as" disabled, requiring proof that the plaintiff was regarded as "substantially limited in his ability to perform a major life activity."

A second narrowing of the ADA'S protections came from interpretation of the requirement that an impairment "substantially limit" a worker's ability to perform a major life activity. An assembly-line worker with carpal tunnel syndrome in her wrists and tendonitis in her neck, shoulders and arms brought suit against her employer in Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184 (2002). The Supreme Court held that to be "substantially limited," Williams had to be "considerably" limited or limited "to a large degree." The court held that Williams' ability to perform such tasks as brushing her teeth showed that she was not "substantially limited" in her ability to perform manual tasks.

Congress Has Widened the Tightrope

The harsh results in Sutton and Williams ultimately led to the ADAAA, an explicit congressional override.

In the ADAAA, Congress adopted the "mitigating measures" rule. As a result, people with epilepsy, diabetes, muscular dystrophy and many mental health impairments now likely have legal protection.

Congress also found that the interpretation of "substantially limited" set "too high a standard." Congress dictated "broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act ..." Congress also expanded the interpretation of disability to cover impairments that are episodic or in remission, as long as the impairment would substantially limit a major life activity when active. For example, individuals who have been diagnosed with a form of cancer that could substantially limit the performance of a major life activity are legally protected even when their cancer is in remission.

The ADAAA also greatly expanded the applicability of the "regarded as" legal protection. Under the ADAAA, an individual now can show she is "regarded as" having a disability by showing that she has lost her job, or suffered some other employment action, because of an actual or perceived physical or mental impairment. Impairment can include conditions that are not substantially limiting. A condition that does not meet the definition of disability could still be legally protected as a "regarded as" disability. With the exception of short-term impairments, expected to last less than six months, an employee could be protected against any other firing due to a physical or mental impairment.

There will still be many differences of opinion over who has a "substantial impairment" and who does not. The difference now is that courts have been instructed to interpret that term in a way that is likely to cover more individuals. Employers and service providers are advised to keep the broader definition in mind.

David Wachtel practices employment and civil rights law and is a partner at the Washington, D.C., law firm of Bernabei & Wachtel.