The ADA Amendments: Everything Old is New Again

A return to the Rehabilitation Act’s approach to compliance

The loud sound that we heard on January 15, 2009, the day that the ADA Amendments (ADAAA) became effective, was the anguish of many disability services providers, ADA coordinators, general counsels, affirmative action officers, and human resource managers who believe they have lost the ability to combat questionable disability claims and demands for accommodation. It is their belief that the admonishment in the ADAAA that the definition of disability is to be “construed in favor of broad coverage of individuals …” will result in a flood of individuals who are arguably not in need of accommodations using the statute and regulations to avoid and/or subvert legitimate academic and employment standards and requirements For those who harbor such fears, the ADA Amendments are figuratively speaking, little more than an invitation for the villains to storm the barricades and set fire to the castle.

Now that we have had the benefit of the above catharsis, it’s time we exhaled and really looked at what the ADAAA is about. The ADAAA merely reflects recognition by Congress that the evolution of the legal definition of disability under the ADA had deviated substantially from the process and definition that was previously used under the Rehabilitation Act, the statute the ADA was patterned after. It was, in fact, Congress’s intent upon passage of the ADA that the definition of disability under the ADA “would be interpreted consistently with how the courts had applied the definition of ‘handicapped individuals’ under the Rehabilitation Act….” (ADAAA Sec. 2(a)(3)). However, not only was the broad definition of the Rehabilitation Act not followed, but what transpired under the ADA was the type of legal gamesmanship that causes people to heartily support the admonishment to “first kill all of the lawyers.” In fact, the definition of disability became so tortured under the ADA that the standing joke was that the only way for an individual to prove that s/he was disabled was for that individual to submit documentation establishing that s/he was not qualified to participate in the program or do the job s/he was seeking. It was a classic “catch-22” situation for individuals seeking the protections of the ADA. Thus, Congress passed the ADAAA to restore the “broad scope of protections intended to be afforded by the ADA… .”(ADAAA Sec. 2(a)(5).

The linchpin of the ADA Amendments requirement to provide the “broad scope of protections” is the manner in which disability is defined and the limits on the ability of institutions, employers and agencies to restrict coverage. The primary ways in which institutions and employers must change their disability determination practices and procedures pursuant to the ADAAA are as follows:

• Apply a broad definition of disability and eliminate procedures that require extensive analysis of the issue of whether an individual’s impairment is a disability;

• Use a comprehensive, individualized assessment to make determinations regarding the legal definition of disability;

• Expand the consideration of factors that reflect “ a substantial limitation” to include indices beyond tests scores; and

• Eliminate the consideration of mitigating measures as a part of the process.

Visit SALOMEHEYWARD.info for a detailed discussion of the ADA Amendments and the changes that they will bring to the way colleges, universities and employers do business.