Alaska Employment Law

“Mitigating Measures” No Longer To Be Considered In Determining Disability

The Americans with Disabilities Act (ADA) has been amended to overturn restrictive Supreme Court rulings and restore the law’s original promise to people with disabilities. 

The law’s effective date is January 1, 2009.

The ADA-AA was Congress’s response to the Supreme Court’s stringent construction of the terms “disability” and “significantly limits a major life activity” in ways that have drastically restricted the class of workers who can rely on the ADA to secure equal employment opportunities. For example, the ADA-AA will overrule the U.S. Supreme Court’s 1999 decision in Sutton v. United Air Lines, Inc., which required that “mitigating measures” like medication be taken into account when evaluating whether an individual has a “disability” within the meaning of the ADA - a decision that contravened appellate decisions nationwide, EEOC regulations, and the ADA’s legislative history. Specific language in the ADA-AA was the result of historic negotiations between the disability and civil rights communities, on the one hand, and the business community, on the other, working with the bill’s chief proponents in Congress.

The ADA-AA significantly changes the current law by:

explicitly removing the Supreme Court’s requirement in Sutton that mitigating measures be considered when evaluating whether an individual has a disability within the meaning of the ADA;

including language in the findings and purposes section to clarify that the courts’ previous interpretations of the term “substantially limits” [in the phrase “substantially limits a major life activity”] were too restrictive;

defining “major life activity” to include “operation of a major bodily function” such as the neurological, circulatory, and reproductive systems (the provision contains a non-exhaustive list);

eliminating the requirement that an individual asserting a “regarded as” claim show that s/he has an impairment that substantially limits a major life activity;

clarifying that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

directing the courts to interpret the ADA as a remedial statute, i.e., liberally; and

conforming the definition of “disability” under the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA.

H/T NELA Information