Braille Monitor                                                    May 2009

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2009 Brings ADA Changes

by Greg Trapp

From the Editor: Greg Trapp is an attorney by training. He is the director of the New Mexico Commission for the Blind and a longtime member of the National Federation of the Blind. In the following brief article he explains in layman’s language the impact of the recent important amendments to the Americans with Disabilities Act. This is what he says:

Greg TrappThe Americans with Disabilities Act Amendments Act of 2008 (ADAAA) took effect on January 1, 2009. The ADAAA, which was signed by President Bush on September 25, 2008, is intended to restore Americans with Disabilities Act (ADA) provisions that had been eroded by a series of Supreme Court decisions. The ADA, originally signed into law in 1990 by the first President Bush, had used an expansive definition of disability that did not consider the use of "mitigating measures." For those of us who are blind the new law has the potential to produce positive changes, even though the ADAAA primarily applies to people with disabilities other than blindness.

The issue of vision was central to the Supreme Court case of Sutton v. United Air Lines, the 1999 case that began the erosion of the definition of disability. The ADA defines "disability" as a "physical or mental impairment" that "substantially limits" one or more "major life activities," a "record of such impairment," or being "regarded as having such an impairment." Congress intended this definition of disability to encourage that decisions be based on a person's merit and not merely on his or her impairment. This precept was established in School Board of Nassau County v. Arline, a 1987 Supreme Court case which granted protection under Section 504 of the Rehabilitation Act to a person with a “record” of a disability. In Sutton, a more conservative court was confronted with facts that caused the Court to interpret this language in a way that was different from what Congress had intended and from what the Court had recognized in Arline. Sutton involved a pair of twin pilots who had corrected vision of 20/20 but who had uncorrected vision of 20/200. The twins were not hired because their uncorrected vision did not meet the vision requirements of United Air Lines. Confronted with this difficult set of facts, the Supreme Court engaged in some linguistic gymnastics and found that "substantially limits" was a "present indicative verb," and that it required that the person be presently and not potentially or hypothetically limited. The Court reasoned that, because the twins had corrected vision of 20/20, they were not substantially limited and were therefore not disabled.

The Sutton decision opened the door to consideration of other "mitigating" measures, such as the taking of medications as in the subsequent case of Murphy v. United Parcel Service. This meant that people with conditions such as diabetes, epilepsy, emphysema, and even cancer were not necessarily covered by the ADA. To be covered, it had to be shown that they were presently substantially limited by their condition. The definition was further narrowed in the 2002 case of Toyota Motor Mfg. v. Williams, which required consideration of an employee's ability to perform activities that were of "central importance to most people's daily lives." Toyota also required the impairment to be "permanent or long-term."

The Sutton and Toyota decisions dramatically limited the number of people covered by the ADA. In the unfortunate words of former Justice Sandra Day O'Connor, the ADA was for "the wheelchair bound," not people with "carpal tunnel syndrome or bad backs."

In passing the ADAAA, Congress stated that it “intended the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage.” The ADAAA overturns the holdings in Sutton and Toyota and reestablishes the standard of disability under Arline. With one exception the ADAAA states that “mitigating measures shall not be a factor when determining whether an impairment substantially limits a major life activity.” The only mitigating measures that can be considered are “ordinary eyeglasses or contact lenses that fully correct visual acuity or eliminate refractive error,” a recognition of the facts in Sutton that open the door to the narrowing of the definition of disability and the consideration of mitigating measures.

By expanding the definition of disability, the ADAAA brings into the community of people with disabilities millions of Americans who can contribute to the life, economy, and prosperity of the nation. Confronted with millions of additional employees and prospective employees, employers will be forced to familiarize themselves more fully with the provisions of the ADA and ADAAA and revise their policies and procedures to comply with the law. Enhanced compliance should translate into expanded opportunity for all employees. By expanding the number of persons with disabilities, the ADAAA also helps to normalize disability, making it a more natural part of the human experience. While no law can ever substitute for good blindness skills, we can hope that the ADAAA will give us a greater opportunity to apply those skills.            

 

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