Congress passed and the President signed into law Public Law No: 110-325 on September 25, 2008, revising the Americans with Disabilities Act (ADA).


Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees.

Under the ADA, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment.

To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, or working.

The EEOC regulations define disabilities to include: (1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The same regulations indicate a disability does not include: (1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) Compulsive gambling, kleptomania, or pyromania; or (3) Psychoactive substance use disorders resulting from current illegal use of drugs. Homosexuality and bisexuality are not impairments and so are not disabilities as defined in this part.

The Supreme Court has ruled that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure. This means that if a person has little or no difficulty performing any major life activity because she or he uses a mitigating measure, then that person will not meet the ADA's first definition of "disability."

An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. This means that the applicant or employee must satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and be able to perform those tasks that are essential to the job, with or without reasonable accommodation.


From the time of its enactment, almost anyone familiar with the ADA knew that it would be the source of litigation. Literally, thousands of cases have been filed, trying to fill in the grey areas created by such a challenging task as set forth by the ADA.

First, the new law deletes two “findings” in the ADA which led the Supreme Court to restrict the meaning and application of the definition of disability. These findings were that there are “some 43,000,000 Americans that have one or more physical or mental disabilities” and that “individuals with disabilities are a discrete and insular minority.”

Second, the law affirmatively provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” It retains the term “substantially limits” from the original ADA definition but makes it clear that this is intended to be a less demanding standard than that enunciated by the U.S. Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that the terms “substantially” and “major” in the definition of disability must “be interpreted strictly to create a demanding standard for qualifying as disabled,” as well as the Court's interpretation that “substantially limits” means “prevents or severely restricts.”

Third, the new law prohibits consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining whether an impairment constitutes a disability. This provision rejects the Supreme Court's holdings in Sutton v. United Air Lines and its companion cases that mitigating measures must be considered.

Fourth, the new law provides new instruction on what may constitute “major life activities.” It provides a non-exhaustive list of major life activities within the meaning of the ADA. In addition, it expands the category of major life activities to include the operation of major bodily functions.

Fifth, the new law removes from the third “regarded as” prong of the disability definition the requirement that an individual demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. Under the law, therefore, an individual can establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment.


The ADA is an important law that has made major improvements in our society and economy. It is, however, a complex framework. Striking the right balance is sometimes a matter of pendulum swings.

Most major business groups supported the bill after changes were made to the original proposal. From the time of passage of the original ADA, everyone realized the courts would have to fill in many of the blanks regarding implementation of the law, particularly the scope of many of the definitions. As the courts did so, disenchantment with the courts led to the introduction of S. 3406.




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