Pending Legislation Would Open the ADA Flood Gates
Anne E. Zerbe
The U.S. House of Representatives is currently considering pending legislation called the "ADA Restoration Act". This bill, H.R. 3195, would expand the definition of "disability" under the Americans with Disabilities Act (ADA) in order to dramatically overhaul how employers interpret and enforce management decisions under the ADA. If the ADA Restoration Act is passed, three major changes would occur:
- 1. The ADA Restoration Act would redefine the term "disability" to mean a "mental or physical impairment," without the additional requirements that the impairment substantially limit a major life activity;
- 2. The ADA Restoration Act would prevent employers from considering the effects of medication or other mitigating measures that an individual uses to manage or control his or her impairment; and
- 3. The ADA Restoration Act would shift the burden of proof when determining whether or not the employee is able to perform a certain job from the employee to the employer.
Currently, the ADA defines "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities of the individual." Individuals whose impairments do not substantially limit a major life activity are not eligible for the ADA's Non-Discrimination and Accommodation coverage. Currently, individuals with impairments that do not substantially limit a major life activity, such as tennis elbow, or near sightedness, are not considered a qualified individual with a disability under the ADA. However, if the ADA Restoration Act (Act) is signed into law, all individuals with impairments, no matter how mild or temporary the impact of the impairment, will be protected under the ADA. Thus, an entire class of individuals with mild impairments would join those individuals whose impairments substantially impact a major life activity. This expansion of the ADA would dramatically impact the ability of employers to manage the workforce and would significantly swell the demand to allocate limited employer resources in considering requests for accommodations.
As set forth in the preamble to the proposed legislation, Congress opposes certain decisions and opinions of the Supreme Court that "have unduly narrowed the broad scope of protection afforded by the Americans with Disabilities Act of 1990." The act takes issue with certain Supreme Court decisions related to the definition of disability under the ADA. The first case cited in the Act, Sutton v. United Airlines, Inc. (1999), held that United Airlines did not violate the ADA when it refused to hire near-sighted twin siblings who applied for the position of commercial airline pilots when both failed to meet United's uncorrected vision standard of 20/100 or better for pilots. In the second decision, Murphy v. United Parcel Service, Inc. (1999) the Supreme Court held that the ADA did not protect a UPS mechanic who used medication to control his blood pressure which was otherwise too high to obtain a required health certification in order to operate a commercial vehicle. In the Sutton and Murphy cases, the Supreme Court established that courts can consider mitigating measures such as eye glasses or contacts for poor eyesight or medication for high blood pressure, when determining whether or not an individual has a disability under the ADA.
In another case cited by the Act, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002), the unanimous Supreme Court held that an assembly line employee who was limited by carpel tunnel syndrome in performing some manual tasks, was not considered an individual with a disability under the ADA because she was not substantially limited in a major life activity. In the Toyota case, the Supreme Court provided guidance to employers as to what degree of impairments can be considered to "substantially" interfere with a person's daily life activities.
If the Act is passed, the ADA's definition of disability as we know it would expand to include any individual with a physical or mental impairment, no matter how slight the impairment. Under the expanded definition of disability, employers would be required to provide accommodations to virtually the entire workforce.
Further, by forbidding employers to consider the effects of mitigating measures of individuals whose impairments are controlled, corrected or regulated through the use of medication or other mitigating measures (such as contacts or eye glasses), the Act would effectively negate the ADA's requirement that an impairment must substantially limit an individual in performing daily activities. Therefore, all near-sighted employees would fall within the protection of the ADA, despite the fact that their vision was completely corrected with corrective lenses.
Finally, the Act would dramatically shift the burden of proof in disability discrimination cases from the employee to the employer. Currently, an employee is required to prove that he or she can perform the essential functions of the job in question before the employer must provide an appropriate accommodation. The proposed Act would require the employers to prove that the employee is unable to perform the essential functions of the job, thereby shifting one of the essential elements of a plaintiff employee's case to the employer's burden of proof as an affirmative defense.
Employers should be wary of the proposed legislation that would divert the limited resources and accommodations of employers to cover any individual with any impairment, thereby reducing the available resources to individuals with the most need. Concerned employers should contact their U.S. Representative and inform him or her that the employer is opposed to the pending legislation that would completely overhaul the ADA, and expand coverage to virtually every employee in the work force.
