The Americans with Disabilities Act (ADA) and the Rehabilitation Act
of 1973, were intended to protect persons with disabilities in the
public and private sectors. Section 504 of the Rehabilitation Act
of 1973 requires that entities which receive federal funding to meet
the needs of students with disabilities as adequately as the needs of
the non-disabled are met. Since the operational definitions
applicable to Section 504 are impacted by those of the ADA, the recent
2008 amendments to the ADA have wide ranging implications for the
implementation of student Section 504 Plans. This article will
discuss how the new ADA definitions may impact 504 plans.
I. Why Did Congress Amend the ADA?
Congress found that discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.
A. Supreme Court Decisions Had Narrowed Impact of ADA. Since the enactment of the Americans with Disabilities Act and the Rehabilitation Act of 1973, the courts, recognizing the heavy burden placed upon employers, schools, and owners of places of public accommodation, had substantially narrowed the laws’ application in several respects. Consequently, Congress enacted the ADA Amendments of 2008 to supercede the holdings of a number of United States Supreme Court cases. Specifically, Congress found that the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress and that the current Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard. P.L. 110-325.
B. Impact of ADA Amendments Upon Prior Court Decisions. The 2008 Amendments have a number of stated purposes:
1.To carry out the ADA's objectives of providing "a clear and comprehensive national mandate for the elimination of discrimination" and "clear, strong, consistent, enforceable standards addressing discrimination" by reinstating a broad scope of protection to be available under the ADA;
2.To reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;
3.To reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;
4.To reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms "substantially" and "major" in the definition of disability under the ADA "need to be interpreted strictly to create a demanding standard for qualifying as disabled," 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";
5.To convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for "substantially limits", and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that 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; and
6.To express Congress' expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term "substantially limits" as "significantly restricted" to be consistent with this Act, including the amendments made by this Act.
II. Trends in 504 Plans
President Bush signed the ADA Amendments Act of 2008 into law on September 25, 2008. Despite the lack of media attention, in light of the nation’s recent focus on domestic economic conditions, the new law substantially expands employer obligations and protections afforded to persons with disabilities. This article will summarize the changes in the ADA and highlight the differences that result in several factual circumstances under the new law, and its impacts upon the obligations of schools under Section 504.
A. Definition of “Disability.” The three-pronged definition of disability has not changed, but each prong has been nuanced to expand “disability” to include conditions that would not have been recognized under prior law. The ADA states that “disability” means: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment.
1.“Substantially Limits.” The new amendments loosen the meaning of “substantially limits” by mandating that the U.S. Department of Education (USDOE) revise the definition to allow more individuals to be able to claim that they have qualified disabilities under the Act. Prior to the amendments, the courts developed a rigid definition of “substantially limits” to mean that the impairment must “prevent or severely restrict “an individual from performing major life activities. Presumably, the USDOE will soften the standard.
2.“Mitigating Measures.” Additionally, the amendments expressly reject the consideration of “mitigating measures” in the determination of whether an individual has a disability. Previously, students with impairments that could be abated with the use of available mitigating or corrective measures, such as prosthetics and medication, had the difficult burden of proving that even with the use of such mitigating measures, they were still substantially limited in the performance of a major life activity. The new amendments, now, provide that the determination of whether an impairment substantially limits a major life activity must be made “without regard to the ameliorative effects of mitigating measures” – subject to certain exceptions for ordinary eyeglasses or contact lenses. Therefore, those students, for example, currently taking medications to control certain symptoms of diabetes may now be qualified individuals with disabilities under the ADA because even though they are able to perform major life activities with medication, they would be unable to do so if they voluntarily refused such medication.
3.Sporadic or Episodic Impairment. Those students with impairments that are sporadic or episodic in nature are also newly included as qualified individuals with disabilities. The amendments provide that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” As a result, a student need no longer have to prove that the impairments are of a prolonged nature.
4.“Major Life Activity.” Prior to the amendments, the ADA contained no definition of what constitutes a “major life activity.” Rather, in the employment context, the EEOC was left to define the term, which it did by using an illustrative, non-exhaustive, list of major life activities. The amendments, which apply to schools under Section 504, now adopt the EEOC’s list, with a number of additions, stating that “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, communicating, thinking and working.” The term “major life activities” is now defined as including the operation of major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
5.“Regarded as.” The ADA, before and after the new amendments, offers protections to individuals who do not actually have disabilities, but yet are “regarded as” having a disability by their employer. Under the old rules, however, courts had interpreted the ADA as requiring that, an employee for example, had a burden of proving that the employer’s perception of the impairment was that the impairment limited a major life activity. This interpretation made it more difficult for an employee to claim discrimination resulting from an employer’s perception that the individual had a disability.
The new amendments set forth a separate definition for the “regarded as” prong, stating that “[a]n 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.” Thus, if an employee can prove that the employee had any type of impairment with an expected duration of six (6) months or more, regardless of how substantially limiting it is, and that the impairment motivated the employer’s adverse action, the employee can claim coverage under the new amendments to the ADA. The same would apply to students under Section 504.
III. Conclusion
In summary, administrators and staff should be aware that
impairments which were not considered qualified disabilities under the
ADA may now qualify under the new amendments. The Amendments
provide that “[t]he definition of disability shall be construed in
favor of broad coverage of individuals under this Act, to the maximum
extent permitted by the terms of this Act.” This is in stark
contrast to the prior pronouncements of the U.S. Supreme Court that the
ADA’s definition of disability “needs to be interpreted strictly to
create a demanding standard for qualifying as disabled.” With the
new amendments, Congress has sent a clear message to the courts that
the protections under the ADA should be afforded to a larger group of
individuals with disabilities than had been defined previously.
Schools should be aware of this change and update practices
accordingly.