Proving a disability is about to get much easier

Effective Jan. 1, the Americans With Disabilities Act will be amended to make important changes in the definition of the word "disability."

The amendments retain the basic definition of disability as: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment.
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But the amendments change the way these statutory terms will be interpreted in some significant ways.

Beginning with a U.S. Supreme Court case in 1999, courts have held that workers who had an impairment that substantially limited a major life activity, but whose impairment could be corrected by eyeglasses, medication or other measures, were not disabled.

This led to the anomalous result that companies could refuse to hire a person because he or she was epileptic or diabetic, but the applicant couldn't sue under the ADA if the condition was controlled by medication because he or she didn't meet the definition of disabled.

Under the amendments, other than ordinary eyeglasses or contact lenses, mitigating measures can't be considered in assessing whether a person is disabled.
'Disability' redefined

The amendments expand the definition of "major life activities" by providing two nonexhaustive lists:

The first list includes many activities that the Equal Employment Opportunity Commission has recognized, such as walking, as well as activities that the EEOC hadn't recognized, such as reading, bending and communicating.

The second list includes major body functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

The amendments lower the bar for ADA coverage and instruct the EEOC to issue regulations that redefine the term "disability" more broadly.

The amendments clarify that impairments that are episodic or in remission are disabilities if they would substantially limit major life activities when active.

The legislation also clarifies that a person can be regarded as disabled if he can show that he was discriminated against because of a perceived impairment, unless the impairment is transitory or minor.

Changing prior court holdings, the amendments make it clear that a worker does not have to show that the perceived impairment would have substantially limited a major life activity.

Finally the new legislation emphasizes that "disability" is to be broadly, and not narrowly, construed.

Barbara Moss is an attorney with the law firm of Stites & Harbison who concentrates her practice on workplace issues. Moss writes a column for The Tennessean on small-business practices and the law. Contact her at barbara.moss@stites.com.