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ADA lawsuits expected to rise as result of new federal law
On Board Online • Legal Agenda • April 27, 2009
By the New York State Association of School Attorneys
When deciding cases involving the Americans with Disabilities Act of 1990 (ADA), the U.S. Supreme Court has tended to interpret the law narrowly. In influential decisions such as Toyota Motor Manufacturing, Kentucky v. Williams (2002), the court has ruled that terms in the ADA ought to be interpreted strictly to create a demanding standard for an employee seeking to qualify as disabled under the ADA.
But a new federal law that took effect on Jan. 1 appears to expand dramatically the circumstances that can give rise to a claim of discrimination under the ADA. The ADA Amendments Act of 2008 (ADAAA 2008) requires that “[t]he definition of disability shall be construed in favor of broad coverage of individuals under this act, to the maximum extent permitted by the terms of this act.”
In addition to expanding the scope of the term “disability,” ADAAA 2008:
• Broadened the range of major life activities protected by the law.
• Created a new standard for what “substantially limits” a person in major life activities.
• Included episodic conditions and conditions in remission as potentially qualifying for protection under the law.
• Stated that individual’s use of mitigating measures such as hearing aides should not prevent them from pursuing claims under the ADA.
As a result, all employers – including school districts – may see an increase in the number of disability discrimination claims.
Intended to protect disabled individuals from discriminatory treatment in the workplace, the ADA defines a disability as a physical or mental impairment that “substantially limits” one or more “major life activities.” One who has a record of such an impairment or is regarded by the employer as having such an impairment can also qualify for ADA protection. To prevail in an ADA lawsuit, the individual must be able to perform the essential functions of the employment position held or sought, with or without a “reasonable accommodation.”
Until now, courts have relied on the U.S. Supreme Court as the final word on how to interpret ADA terms such as “physical or mental impairment,” “substantially limits,” and “major life activities.” But Congress addressed these terms in ADAAA 2008, opening the door to more litigation.
For instance, ADAAA 2008 expands the list of “major life activities” that might be compromised by a disabling condition. Added to the list of previously recognized major life activities are eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. Additionally, the legislation clarifies that the term “major life activity” includes the operation of such major bodily functions as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. Neither the listings of major life activities nor major bodily functions are exhaustive, however. Also, an episodic impairment or one that is in remission now qualifies as a disability if it would substantially limit a major life activity when active.
ADAAA 2008 also expands the meaning of the term “substantially limits.” In light of the law, the U.S. Equal Emp-loyment Opportunity Commission is expected to revise its regulations defining the term “substantially limits.” It is likely that the new definition will be less restrictive than the current “prevents or severely restricts” standard.
ADAAA 2008 also stated that courts should ignore mitigating measures such as hearing aides when deciding whether a person qualifies as disabled, and it addressed the knotty situation in which a person does not claim to have a disability but asserts that the employer regarded him or her as having a disability (see sidebar).
As a result of the ADAAA 2008, employers, such as school districts, will need to exercise greater caution in their employment practices and decisions. School district employers will need to carefully consider the issue of “reasonable accommodation” in the workplace and should review their policies and practices for evaluating requests by persons with disabilities for reasonable accommodations.
Requests for workplace accommodations should be directed to the appropriate human resources administrator to ensure that the proper interactive process between the school district and employee occurs. Management and supervisory school personnel should be trained on the following key ADAAA 2008 provisions: the definition and expanded scope of the term “disability,” the broadened range of major life activities, the new standard for “substantially limits,” the fact that mitigating measures are no longer consider the inclusion of additional major bodily functions and the inclusion of episodic conditions and conditions in remission.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Bonnie Gorham, an attorney with Guercio & Guercio.

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