New disabilities law: New lawsuits?
September 19, 2008 by Jim GiulianoPosted in: Disability discrimination, Employment law, Special Report
After a series of U.S. Supreme Court rulings that tightened the definitions of “disabled” in the workplace, the U.S. Senate fired back with a law that expanded the definitions — and expanded the potential for employee lawsuits.
The proposal is called the ADA Amendments Act. It was passed by the U.S. House earlier this year, by a vote of 402-17, and all indications are that President Bush will sign it into law, effective Jan. 1, especially since the bill sailed through the Senate with a voice vote and no dissent.
Here are the main changes to existing law and court rulings:
- The Supreme Court had ruled that so-called “mitigating measures” used by a disabled employee — such as medications or prosthetics — would take the employee out of the official category of “disabled.” In other words, the employer would not have to make disability accommodations for that employee. The new law changes all that. Employers will have to make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures.
- The original Americans with Disabilites Act and the Supreme Court defined limitations on a narrow list of “major life activities” that could qualify someone as “disabled” for the purposes of employment. The range of major life activities listed in the act take in: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
The text of the bill goes so far as to cite the court decisions the new law is designed to overrule.
Specifically, the new legislation will overturn three 1999 High Court decisions: Sutton v. United Air Lines, Murphy v. UPS and Albertson’s, Inc., v. Kirkingburg.
Those are the cases where the court ruled that the determination of whether an individual has a “substantial impairment” must be made while taking into account the use of any medications, eyeglasses, hearing aids or other corrective measures.
The new law also addresses the 2002 case of Toyota v. Williams, in which the Court defined the term “substantially limits” to mean “considerable” or “to a large degree,” precluding impairments that interfere in only a minor way with performing tasks from coverage under the ADA.
The House version of the bill defined “substantially limits” to mean “materially restricts,” lowering the burden for proving the existence of a disability. The Senate version doesn’t contain the “materially restricts” language, but it too would overturn Williams. The definition of a “limitation” is the area that most legal experts see as ripe for lawsuits, especially if companies play hardball with employees who complain about what they perceive as a disability.
What now?
Several legal experts say employers can improve their chances of escaping lawsuits by taking a reasonable approach.
For instance, in an interview with Lawyers Weekly, Christy Hubbard, a partner in the Phoenix office of Lewis and Roca, said employers who have followed the ADA won’t have to overhaul their policies, but simply retune them and “retrain their managers to think more broadly in terms of what a disability may be.”
Employers also need to take action to avoid workplace tensions that can develop when some workers are given accommodations while others aren’t. “It is human nature to distrust things we have not ourselves experienced, and so a person who has never had severe back trouble, such as sciatica, may believe the person is ‘faking it’ or is just lazy,” Hubbard said. “To prevent harassment and retaliation … companies need to identify these types of issues early on. It is not in anyone’s best interest to let the lack of a $50 chair or some overzealous bravado cause a million-dollar lawsuit.”
Tags: ADA Amendments Act, americans with disabilities act, disabilities, disabled, Supreme Court
Are the Benefits of Automatic Enrollment Worth the Cost?
September 22nd, 2008 at 2:04 pm
We are an architectural firm that adhears to all of the ADA guidelines in both our own office and the projects we design. However, there is no such thing as a $50.00 chair that will solve someone’s back problem. Worthwhile posture chairs range between $400 and $800; anything less will not do the job. Nevertheless, I agree with your approach.
September 22nd, 2008 at 4:11 pm
This is a another example of a law with good intentions that will turn out to be horrible in its consequences. It will make the FMLA look like a well written treatise.
September 23rd, 2008 at 6:02 am
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September 23rd, 2008 at 11:29 am
I work with an organization that provides training for individuals with disabilities. In my opinion, this new “law” will will be abused by employees from high blood pressure to poor eye sight that is corrected. The ADA was written in order to give individuals with a major life functioning problem an opportunity to work if they were otherwise able to do the job. This new law will hurt those whom it was orginally put in place to protect. To ask an employer to make “reasonable accommodations” for individuals who are not experiencing a major life function is asking our employers to much. If we continue with our government interference, the government will end up running all our companies. What does this sound like?
September 24th, 2008 at 12:48 pm
I agree with Carol in that I see waves of people who don’t like their current work situation using this as a tool to get their own way by claiming that minor or non-existent “disablities” have to provide them special treatment. Does this mean employers will now have to supply anyone who wears glasses with expensive, high definintion monitors to accomodate a “disability”? Exactly where will this end?
September 24th, 2008 at 4:24 pm
These changes don’t strike me as the end of the world. While the bill could have been written more clearly, it seems to make a common sense change in the law. The old law, in seeking to protect people with serious disabilities, created a legal situation where it was illegal to discriminate against seriously disabled people but perfectly ok to discriminate against people with lesser disabilities. In other words, you had to accommodate the person with no legs but could fire someone because they limp. Granted, it does vastly expand the group of people who are protected to include virtually all of us, but in reality, very few of those people will need accommodation. Of those that do, most accommodations are inexpensive. I technically have a disability (I wear glasses), but I’m perfectly capable of doing my desk job with the standard equipment that my employer provides.
June 19th, 2009 at 5:01 pm
Once again I see this issue as being a non-issue in workplaces where people are treated fairly, with dignity and respect. In fact when the workplace culture is such that the majority of workers are happy and feel they are treated fairly, the employees will actually defend the employer. There does not have to be hostile attitudes between the two if everyone is willing to be fair. You see this same behavior when children feel they are not being treated fairly and it is blatant, they rebel. As long as there is this power struggle and people feel that their rights are being violated unjustifiably they will find every loophole there is to protect their self esteem and dignity. It is just plain ole psychology. We have to treat people right and they will not fight. It really is not difficult to do, but it means that people who are in positions of power will need to not lower it constantly over the heads of those who already know they are in the lower part of the food chain.