ADA amendments reflect Congressional intent
Judith Ogden
October 14, 2008
When the Americans with Disabilities Act (ADA) was first passed in 1990, Congress indicated that
its purpose was to provide "a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." Today, eighteen years later, persons
with disabilities still struggle to find equal opportunities in the workplace. Although the
disabled represent the largest minority in America, their unemployment rates have been estimated to
be as high as 65%.
Research conducted by the Bobby Dodd Institute, a nonprofit Atlanta organization that
provides job training for persons with disabilities, found that nearly half of Atlanta businesses
believe that people with disabilities would not be able to adequately perform work duties.
The Georgia Department of Labor reports that there are 940,000 Georgians with disabilities between
the ages of 21 and 64, and 276,000 of them want to work.
The employer's lack of knowledge may be just part of the equation. Over the last ten
years, court decisions have narrowed the scope of the Americans with Disabilities Act.
Individuals with conditions such as cancer, epilepsy, and diabetes have been found to not have a
disability, and therefore, were not protected by the Act. On September 25, 2008, President
Bush signed into law the ADA Amendments of 2008. These new amendments were part of a
bi-partisan effort to reverse prior court decisions. In fact, the Act states specifically
that it rejects the limitations and standards of several U. S. Supreme Court cases.
The most significant revisions are to the definition of a "disability." Employers may
no longer consider mitigating measures such as medication in determining whether an individual has
a disability. Special rules exist for ordinary eyeglasses and contact lenses. Also
covered now are conditions that are episodic or in remission as well as those that are
temporary.
The ADA has always defined a disability as a physical or mental impairment that substantially
limits one or more "major life activities" of an individual. The amendments expand the list
of major activities to now include reading, bending, and communicating, as well as a number of
major bodily functions. Protection for individuals who are "regarded as" disabled will exist
whether the perceived impairment actually limits a major life activity. The amendments also
give the Equal Employment Opportunity Commission the authority to issue regulations to implement
these changes. This exceeds the power the EEOC had under the original Act.
The amendments will undoubtedly lead to more claims of disability and possibly to more
litigation. Employers should utilize the ADA's interactive process to resolve additional
claims for reasonable accommodations. Employers will also need to update handbooks, and to
see that HR personnel and supervisors are trained on the new rules.
Despite possible concerns, the Act received support not only from civil rights and disability
groups, but also from business oriented groups such as the U. S. Chamber of Commerce, the National
Association of Manufacturers, and the Society for Human Resource Management. Some supporters
of the Act suggest that as baby boomers are beginning to retire, and we anticipate a shortage of
job applicants, employers cannot afford to overlook qualified workers. Furthermore, the
Georgia Department of Labor has determined that if just 1% of the disabled Georgians who wanted to
work actually worked full time for a year at the weekly wage of $273, almost $40 million dollars
would flow back into the Georgia economy.
Judith Ogden is associate professor of business law at the school of business at Clayton State
University.