Reinforce your flood walls employers! The litigation flood gates have just been opened. On September 11, 2008, the U.S. Senate overwhelmingly passed the American with Disabilities Act ("ADA") Amendments Act of 2008. The U.S. House had already passed similar legislation this year. President Bush is expected to sign the Act into law within the next couple of weeks. The Act will become effective on January 1, 2009. So, what does this mean for employers? Plenty!!

Generally, in order to establish a discrimination claim under the ADA, an employee must show that (1) they have a disability; (2) they are qualified for the job; (3) they suffered an adverse action; (4) the employer lacked an overriding business justification or the employers business justification was pretextual. Under the first prong, an employee can establish that they have a "disability" if they (a.) have a physical or mental impairment that substantially limits one or more major life activities; (b.) have a record of such an impairment; or (c.) are regarded as having such an impairment.

In Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), the U.S. Supreme Court held that the definition of disability should be narrowly construed and interpreted "strictly." Under Williams, in order for an employee to establish that they were actually "disabled," the employee had to have an impairment which "prevented or severely restricted them from performing activities that are of central importance to most peoples daily lives." This standard resulted in very few employees being able to establish that they were, in fact, disabled under the terms of the ADA. The 2008 Amendments expressly overrule Williams and the long line of district court cases applying the Williams analysis. The 2008 Amendments will now require a broader, liberal interpretation of the term "disability." Specifically, the Amendments specify that, as of January 1, 2009, ". . . the question of whether an individuals impairment is a disability . . . should not demand extensive analysis." See Sec. 2(b)(5) of the Amendments. (emphasis added)

The Amendments also expressly reject the U.S. Supreme Courts holding in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases. Sutton held that the question of whether someone is disabled (i.e. "substantially limited in a daily life activity") must be determined with reference to all mitigating measures. For example, based upon Sutton, if a person is "substantially limited in a daily life activity" without the use of medication but is not substantially limited when they use their medication, the mitigating measure of medication would remove the person from the definition of disability under the ADA. The 2008 Amendments throw this concept out the window.

As of January 1, 2009, with the sole exception of eye glasses or contact lenses, mitigating measures are not to be taken into consideration at all for purposes of determining whether or not the person is "disabled" under the ADA. See Sec. 3(4)(E) of the Amendments. The Amendments also specify that an "episodic or in remission" impairment (such as cancer or migraine headaches) is per se a disability under the ADA if it would substantially limit a major life activity when active. See Sec. 5(c)(2). Further, the Amendments mandate that the Equal Employment Opportunity Commission ("EEOC"), the administrative agency in charge of providing regulations for the ADA, revise their current regulatory definition of "substantially limits" to be consistent with the more liberal, broader view of the 2008 Amendments.

Sutton also established that, in order for an employee to establish they were "regarded as" disabled, the employee had to prove that the employer regarded them as having an impairment that would qualify as a disability. Therefore, if the employer regarded the employee as having a physical deformity that did not substantially limit any of the employees major life activities, the employees claim failed. The 2008 Amendments wholly reject this definition of "regarded as." As of January 1, 2009, an employee can establish that the employer regarded them as disabled "whether or not the impairment limits or is perceived to limit a major life activity." See Sec. 3 of the Amendments. As a result, if an employer terminates an employee based upon a scar or physical deformity after January 2009 (even if the scar or deformity does not meet the definition of an actual disability), the employer has violated the ADA. "Regarded as" claims just got some serious teeth! Employers can expect an increase in "regarded as" disability litigation in 2009.

What can employers do now to prepare for the coming flood of ADA litigation? First, it is highly recommended that employers undergo training as to what the new Amendments will require of them for purposes of providing reasonable accommodations as many conditions that did not have to be accommodated in the past will now qualify for accommodations. Second, it is recommended that employers take a liberal view of the term "disability" at the present time and resist the urge to be restrictive when faced with requests for accommodation. Third, the Amendments change the focus of future litigation from the first prong of a discrimination claim (i.e. whether someone is "disabled") to the second prong (i.e. whether the person is "otherwise qualified"). Therefore, now is the time to conduct an audit of your job descriptions to ensure that they expressly set forth all of the essential functions of the job in question because an employee will not be considered "otherwise qualified" under the ADA if they are unable to fulfill the essential functions of the job. The employer, however, will bear this burden of proof if challenged.