By Tina M. Maiolo, Esq. Member, Carr Maloney P.C.

One of the main focuses of the Second Session of the 110th Congress was the restoration of its intent and protections in enacting the Americans with Disabilities Act of 1990 (“ADA”).

In 1990, Congress enacted the ADA to apply the broad protections afforded by the Rehabilitation Act of 1973, which applied to programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors, to the private sector.  Recognizing that, although qualified to perform the essential functions of their jobs, individuals with physical and mental disabilities were unfairly being denied private sector employment because of prejudice, antiquated attitudes or remaining societal and institutional barriers, Congress sought to provide a certain and complete directive to private employers, among others, to eliminate discrimination against qualified individuals with disabilities.

Over the years, the broad definition of disability intended by Congress in 1990 has been excessively narrowed.  Specifically, the Supreme Court’s holdings in Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999) and its companion cases significantly narrowed the broad scope of protection Congress intended by holding that ameliorative effects of mitigating measures must be considered in determining whether an impairment substantially limits a major life activity.  The intended scope of protection was further limited by the Supreme Court’s holding in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which interpreted the term “substantially limits” to require a more significant degree of limitation.  Finally, the current Equal Employment Opportunity Commissions’ ADA regulations define the term “substantially limits” as “significantly restricted,” which is too high of a standard to be consistent with Congressional intent.  As a result of these Supreme Court cases and the EEOC regulations, individuals with a variety of substantially limiting impairments intended to be covered by the ADA were deemed to not be “disabled” for the purposes of the Act and, therefore, denied its protections.

The ADA Amendments Act of 2008 (“ADAAA”), which was passed by Congress on September 11, 2008, by the House of Representatives on September 17, 2008, and fully expected to be signed by the President in the upcoming weeks, is intended to restore the original intent, and broad scope, of the ADA and reject the Supreme Court’s decisions and EEOC regulations that have improperly narrowed the scope of its protections.  Pursuant to the ADAAA, the primary object of attention in cases brought under the ADA will be whether entities covered under the ADA have complied with their obligations, and the question of whether an individual’s impairment is a disability under the ADA will not demand extensive analysis.

To restore the ADA to it original purpose, the ADA Amendments Act:

  • Sets forth rules of construction regarding the definition of “disability,” including:
    • such term shall be construed in favor of broad coverage of individuals;
    • an impairment that substantially limits one major life activity does not need to limit other major life activities;
    • an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
    • the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.
  • Prohibits employment discrimination against a qualified individual on the basis of disability, as opposed to prohibiting employment discrimination against a qualified individual with a disability because of the disability.
  • Prohibits the use of qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria is related to the position and is consistent with business necessity.
  • Expressly states that nothing in the Act:
    • alters the standards for determining eligibility for benefits under state worker’s compensation laws or under state and federal disability benefit programs;
    • alters the requirement to make reasonable modifications in policies or procedures, unless such modifications would fundamentally alter the nature of the goods, services, facilities, or accommodations involved; or
    • provides the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.

This new law is expected to go into effect by January 1, 2009.   
If you have any questions or need additional comment on the ADAAA, please contact Tina M. Maiolo, Esq., Member of Carr Maloney, P.C. ( at