While most of us are able to remember when the Americans with Disabilities Act was first enacted, we may not remember just how much protection it offered people with disabilities when it first went into effect.

The ADA was enacted in 1990 to protect people with disabilities from, amongst other things, discrimination in the workplace based on disabilities. Congress has found, however, that over the last several years, courts have eroded these protections with decisions that have narrowed the scope of the ADA's protection. Moreover, Congress has found that the Equal Employment Opportunity Commission, whose regulations aid in interpreting and applying the ADA, have set too high a standard for determining whether a person is substantially limited by his or her disability.

In with the new

In response to this trend, on Sept. 25, President Bush signed a bill, unanimously approved by Congress, called the Americans with Disabilities Amendments Act of 2008. The bill takes effect Jan. 1, 2009, and makes several significant changes to the ADA with the intent of restoring the act's original level of protection.

More specifically, the bill:

• States that the question of whether a person's impairment is a disability should not require extensive analysis.

• Contains a new definition of "substantially limits" and states that an impairment that substantially limits one major life activity need not limit other major life activities to cause a disability.

• States that the determination of whether an impairment substantially limits a major life activity shall be made without regard to mitigating measures (except eyeglasses or contact lenses).

• Directs the EEOC to amend its regulations to lower the standard for "substantially limits" from its current definition of "significantly restricted."

• Includes a list of "major life activities," including some the EEOC regulations never recognized, such as bending, reading and communicating.

• Includes a list of "major bodily functions" as a part of "major life activities."

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

The bill also tightens the definition of being "regarded as" disabled by stating that:

• A person cannot be "regarded as" disabled because of only a transitory or minor impairment. A transitory impairment is one with an expected duration of six months or less.

• A person is not entitled to a reasonable accommodation if she or he meets only the "regarded as" prong of the definition of disability.

Taking on the high court?

Even though the bill effects merely a return to the original intent of the ADA, the bill still changes significantly the standards under which we have to evaluate whether employees could prevail on claims of disability discrimination.

In fact, the bill expressly states that its purpose is to overturn two major Supreme Court decisions, both of which have shaped the outcome of ADA lawsuits for the past several years.

In Sutton v. United Air Lines, Inc. (527 U.S. 471, 1999), the court narrowed the scope of the ADA's protection by holding that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures. In other words, a person who is not able to walk due to a disability could fail to meet the definition of "disabled" if he was able to walk with the aid of a cane. Congress found that this holding overly narrowed the scope of the ADA's protections by excluding people who treat their disabilities with medicine or medical equipment.

Likewise, in Toyota Motor Manuf., Kentucky, Inc. v. Williams (534 U.S. 184, 2002), the court held that a person must have an impairment that prevents or severely restricts her or him from doing activities that are of central importance to most people's daily lives. Congress found that this holding required a greater degree of limitation than was intended by the ADA.

So what should your company expect with the passage of this bill? Quite simply, more potential plaintiffs and, therefore, potentially more litigation.

The bill lists several "major life activities," including some never recognized by the EEOC regulations. The bill also expressly recognizes "major bodily functions," thereby qualifying more individuals as "disabled." Also, with a lower standard for what constitutes a "substantial limitation," you may expect more lawsuits from people who are not "disabled enough" under the current law.

What could pack the most punch, however, is the bill's prohibition on considering mitigating measures in assessing whether an impairment substantially limits a major life activity. Lastly, watch closely for "regarded as" situations, as the bill has clarified those by placing some new limitations on that definition of disability.

Ginger Schröder is a partner in Schröder Joseph & Associates LLP, and Megan Landreth is of counsel at the firm. They can be reached at gschroder@sjalegal.com and meganlandreth@hotmail.com.