2008 ADA Amendments
PROFESSOR RUTH COLKER
MORITZ COLLEGE OF LAW
THE OHIO STATE UNIVERSITY
Basic ADA Requirements
 The term “disability” means, with respect to an
individual –
a)
b)
c)
a physical or mental impairment that substantially limits one
or more major life activities of such individual;
a record of such an impairment; or
being regarded as having such an impairment.
Background to Amendments
 Sutton Twins
 “The determination of whether an individual is
disabled should be made with reference to measures
that mitigate the individual’s impairment, including,
in this instance, eyeglasses and contact lenses.”
More Background
 Toyota v. Williams
 The statutory requirements for defining disability
“need to be interpreted strictly to create a
demanding standard for qualifying as disabled.”
Some results under pre-2008 case law
 The following kinds of disabilities were sometimes
found not covered by the ADA:

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



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Deafness
Epilepsy
Cancer
Learning Disabilities
Missing Limbs
Visual impairments
Cognitive impairments
Psychological impairments
Congress’ Response
 Senate passed S. 3406 by voice vote on September 11,
2008.
 House cleared S. 3406 by unanimous consent.
 President George W. Bush signed the ADA
Amendments into law on September 25, 2008.
 The effective date is January 1, 2009.
Congress’ Intent
 “The definition of disability in this Act 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 is the intent of Congress that the primary object
of attention in cases brought under the ADA should
be whether entities covered under the ADA have
complied with their obligations, and to convey that
the question of whether an individual’s impairment
is a disability under the ADA should not demand
extensive analysis.”
Major Life Activities
 Major life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking,
communicating, and working.

Everything in “red” type face was not previously contained in
EEOC regulations.
Proposed EEOC Regulations
 Caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, sitting,
reaching, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking,
communicating, interacting with others, and
working;
Major Bodily Functions
 For purposes of previous paragraph, “a major life
activity also includes the operation of a major bodily
function, including but not limited to, functions of
the immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.”

Previous regulations contained no reference to the concept of a
major bodily function.
Proposed EEOC Regulations
 The operation of major bodily functions, including
functions of the immune system, special sense
organs, and skin; normal cell growth; and
digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory,
cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions.
Importance of Change
 Cancer
 Epilepsy
 Bad backs
 ADHD
 HIV
Substantially Limits
 The determination of whether an impairment
substantially limits a major life activity shall be made
without regard to the ameliorative effects of
mitigating measures, such as:
1.
2.
3.
4.
Medication, medical supplies, equipment, or appliances,
low-vision devices, prosthetics, hearing aids or devices,
mobility devices, or oxygen therapy equipment and supplies
Use of assistive technology
Reasonable accommodations or auxiliary aids or services; or
Learned behavioral or adaptive neurological modifications
Importance of Change
 Hearing aids or cochlear implants
 High functioning people with learning disabilities
 Monocular vision (Hallie Kirkingburg)
Proposed EEOC Regulations
 Add a fifth category:
 Surgical interventions, except for those that permanently
eliminate an impairment.
Eyeglass Exception
 “The ameliorative effects of the mitigating measures of
ordinary eyeglasses or contact lenses shall be considered
in determining whether an impairment substantially
limits a major life activity.”
 BUT
 “A covered entity shall not use qualification standards,
employment tests, or other selection criteria based on an
individual’s uncorrected vision unless the standard, test,
or other selection criteria, as used by the covered entity,
is shown to be job-related for the position in question
and consistent with business necessity.”
Where does this leave the Sutton twins?
Regarded as Having Such an Impairment
 “An individual meets the requirement of ‘being
regarded as having such an impairment’ if the
individual establishes that he or she has been
subjected to an action prohibited under this Act
because of an actual or perceived physical or mental
impairment whether or not the impairment limits or
is perceived to limit a major life activity.”

But “regarded as” prong does not apply to “impairments that
are transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of 6 months or
less.”
What does that mean?
•Impairment prong is all that
matters in a “regarded as”
case.
•Reverses cases that focused
on “major life activity of
working” as part of that
standard.
•Many more cases will be
brought under “regarded as”
prong.
Listed Disabilities under EEOC Proposed
Regulations
 In addition to examples such as deafness, blindness,
intellectual disability (formerly termed mental
retardation), partially or completely missing limbs, and
mobility impairments requiring the use of a wheelchair,
A.
B.
C.
D.
E.
F.
G.
H.
Autism
Cancer
Cerebral palsy
Diabetes
Epilepsy
HIV or AIDS
Multiple sclerosis and musculardystrophy
Major depression, bipolar disorder, post-traumatic stress disorder,
obsessive compulsive disorder, or schizophrenia.