Alex B. Long[*]
On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA). When the first President Bush signed the original Americans with Disabilities Act (ADA) into law in 1990, he said it was time “to rejoice in and celebrate another ‘Independence Day,’ one that is long overdue.” For the 43 million Americans with disabilities, the ADA was supposed to represent the opening of doors that had long been closed. Employers, state and local governments, and private businesses—from bowling alleys to restaurants—would now be required to make reasonable modifications to their facilities, policies, and procedures in order to allow full participation by individuals with disabilities. In short, expectations for the ADA were high.
This probably explains why the ADA is viewed so widely by disability rights advocates and its original authors as such a huge disappointment, especially in the employment context. Studies consistently reveal that, despite the ADA, employees who claim to be the victims of disability discrimination in the workplace face long odds. Plaintiffs outside the workplace have enjoyed more success in requiring government actors and private businesses to make changes to their existing structures and policies, but the reality is that many individuals with disabilities are still excluded from participating in activities most of us take for granted.
The biggest limitation of the ADA has been its definition of “disability.” In order to be protected by the Act, one must first show the existence of a disability. To put it mildly, this has not been an easy task. As originally drafted, the definition was vague and courts tended to interpret the definition narrowly. People with a variety of serious physical or mental impairments, ranging from AIDS, to cancer, to bipolar disorder, have been found not to have disabilities under the ADA. In one case, an individual with cancer brought suit against his employer and died before the resolution of the case, only to be told (posthumously) that his cancer was not limiting enough to amount to a disability under the Act.
The ADA Amendments Act of 2008 sets out to address some of the more controversial and problematic aspects of the definition of disability. The Act starts with essentially the same basic three-pronged definition of disability that existed under the original ADA. According to the ADAAA:
The term “disability” means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment . . . .
On closer examination it becomes clear that the Act includes some fairly dramatic changes to the definition. The following piece summarizes the provisions of the new law and offers some tentative predictions as to the effect of these changes on future cases. Part I discusses the changes to the ADA’s definition of disability. Part II describes some of the other important changes to the Act. Finally, Part III identifies some of the issues left unresolved by these changes.