28 CFR Parts 35 and 36 Amendment of ADA Title II and Title III Regulations To Implement ADA Amendments Act of 2008 - Final Rule

III. Background

The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110–325, sec. 8. As with other civil rights laws, individuals seeking protection in court under the anti-discrimination provisions of the ADA generally must allege and prove that they are members of the ‘‘protected class.’’ Under the ADA, this typically means they have to show that they meet the statutory definition of being an ‘‘individual with a disability.’’ See 154 Cong. Rec. S8840–44 (daily ed. Sept. 16, 2008) (Statement of the Managers); see also H.R. Rep. No. 110–730, pt. 2, at 6 (2008) (House Committee on the Judiciary). Congress did not intend, however, for the threshold question of disability to be used as a means of excluding individuals from coverage. H.R. Rep. No. 110–730, pt. 2, at 5 (2008).

In the original ADA, Congress defined ‘‘disability’’ as (1) a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. 12202(1). Congress patterned this three-part definition of ‘‘disability’’—the ‘‘actual,’’ ‘‘record of,’’ and ‘‘regarded as’’ prongs—after the definition of ‘‘handicap’’ found in the Rehabilitation Act of 1973. See H.R. Rep. No. 110–730, pt. 2, at 6 (2008). By doing so, Congress intended that the relevant case law developed under the Rehabilitation Act would be generally applicable to the term ‘‘disability’’ as used in the ADA. H.R. Rep. No. 101–485, pt. 3, at 27 (1990); see also S. Rep. No. 101–116, at 21 (1989); H.R. Rep. No. 101–485, pt. 2, at 50 (1990). Congress expected that the definition of ‘‘disability’’ and related terms, such as ‘‘substantially limits’’ and ‘‘major life activity,’’ would be interpreted under the ADA ‘‘consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act’’—i.e., expansively and in favor of broad coverage. Public Law 110–325, sec. 2(a)(1)–(8) and (b)(1)–(6); see also 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers) (‘‘When Congress passed the ADA in 1990, it adopted the functional definition of disability from . . . Section 504 of the Rehabilitation Act of 1973, in part, because after 17 years of development through case law the requirements of the definition were well understood. Within this framework, with its generous and inclusive definition of disability, courts treated the determination of disability as a threshold issue but focused primarily on whether unlawful discrimination had occurred.’’); H.R. Rep. No. 110–730, pt. 2, at 6 & n.6 (2008) (noting that courts had interpreted the Rehabilitation Act definition ‘‘broadly to include persons with a wide range of physical and mental impairments’’).

That expectation was not fulfilled. Public Law 110–325, sec. 2(a)(3). The holdings of several Supreme Court cases sharply narrowed the broad scope of protection Congress originally intended under the ADA, thus eliminating protection for many individuals whom Congress intended to protect. Id. sec. 2(a)(4)–(7). For example, in Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999), the Court ruled that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures. In Sutton, the Court also adopted a restrictive reading of the meaning of being ‘‘regarded as’’ disabled under the ADA’s definition of ‘‘disability.’’ Id. at 489–94. Subsequently, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court held that the terms ‘‘substantially’’ and ‘‘major’’ in the definition of ‘‘disability’’ ‘‘need to be interpreted strictly to create a demanding standard for qualifying as disabled’’ under the ADA, id. at 197, and that to be substantially limited in performing a major life activity under the ADA, ‘‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.’’ Id. at 198.

As a result of these Supreme Court decisions, lower courts ruled in numerous cases that individuals with a range of substantially limiting impairments were not individuals with disabilities, and thus not protected by the ADA. See 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers) (‘‘After the Court’s decisions in Sutton that impairments must be considered in their mitigated state and in Toyota that there must be a demanding standard for qualifying as disabled, lower courts more often found that an individual’s impairment did not constitute a disability. As a result, in too many cases, courts would never reach the question whether discrimination had occurred.’’). Congress concluded that these rulings imposed a greater degree of limitation and expressed a higher standard than it had originally intended, and unduly precluded many individuals from being covered under the ADA. Id. at S8840–41 (‘‘Thus, some 18 years later we are faced with a situation in which physical or mental impairments that would previously have been found to constitute disabilities are not considered disabilities under the Supreme Court’s narrower standard’’ and ‘‘[t]he resulting court decisions contribute to a legal environment in which individuals must demonstrate an inappropriately high degree of functional limitation in order to be protected from discrimination under the ADA.’’).

Consequently, Congress amended the ADA with the Americans with Disabilities Act Amendments Act of 2008. This legislation is the product of extensive bipartisan efforts, and the culmination of collaboration and coordination between legislators and stakeholders, including representatives of the disability, business, and education communities. See 154 Cong. Rec. H8294–96 (daily ed. Sept. 17, 2008) (joint statement of Reps. Steny Hoyer and Jim Sensenbrenner); see also 154 Cong. Rec. S8840–44 (daily ed. Sept. 16, 2008) (Statement of the Managers).

The ADA Amendments Act modified the ADA by adding a new ‘‘findings and purposes’’ section focusing exclusively on the restoration of Congress’s intent in the ADA to broadly interpret the term ‘‘disability’’ to ensure expansive coverage. These new ADA Amendments Act-specific findings and purposes are meant to restore a broad scope of protection under the ADA by providing clear and enforceable standards that support the mandate to eliminate discrimination against people with disabilities. The ‘‘purposes’’ provisions specifically address the Supreme Court decisions that narrowed the interpretation of the term ‘‘disability,’’ rejecting the Toyota strict interpretation of the terms ‘‘major’’ and ‘‘substantially;’’ the Sutton requirement that ameliorative mitigating measures must be considered when evaluating whether an impairment substantially limits a major life activity; and the narrowing of the third, ‘‘regarded as’’ prong of the definition of ‘‘disability’’ in Sutton and School Board of Nassau County v. Arline, 480 U.S. 273 (1987). In addition, the ADA Amendments Act specifically rejects the EEOC’s interpretation of ‘‘substantially limited’’ as meaning ‘‘significantly restricted,’’ noting that it is too demanding of a standard. See Public Law 110–325 sec. 2(b).

The findings and purposes section of the ADA Amendments Act ‘‘gives clear guidance to the courts and . . . [is] intend[ed] to be applied appropriately and consistently.’’ 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the Managers). The Department has amended its regulations to reflect the ADA Amendments Act, including its findings and purposes.