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JEIBI Journal of Early and Intensive Behavior Intervention VOLUME 5 - NUMBER 3 ThE LAy Of ThE LAw (An OccAsIOnAL nOTE) ROBERT K. CRABTREE, ESq. The ADA Undergoes Some Critical Fine-Tuning: Amendments effective in January 2009 Should Correct the Too-Narrow Interpretations of the Courts I. The ADA’s original purposes: and frustration in many quarters as courts began to interpret and apply its provisions as The Americans With Disabilities Act (the narrowly as possible. Courts needed to “ADA”), enacted by Congress in 1990, was interpret the ADA’s provisions defining what greeted with great celebration by persons with a covered “disability” is; the extent to which a disabilities, their families and advocates. The “disability” must interfere with one’s “major idea was broadminded and straightforward: life activities” to warrant protection; the Congress intended that the ADA protect those definition of “major life activities” for these with disabilities (including those who were purposes, and so on. One by one, the courts’ simply perceived as having a disability) pronouncements reduced the scope of against discrimination because of their protection afforded under the ADA and the disabilities in access to jobs, education, categories of people who could seek that commerce, entertainment and other benefits protection. of public life. If a person was “otherwise able” to engage in the activity in question – This judicial narrowing came to a head in with the help of whatever “reasonable two Supreme Court cases. In sutton v. United accommodations” were necessary – s/he Air Lines, Inc., 527 U.S. 471 (1999), the Court could not legally be prevented from held that “mitigating measures” – such as participating because of his or her disability medications or medical devices that ease the or perceived disability. effects of an impairment – must be taken into account in determining whether a person is Under a key provision of the ADA, a “substantially limited in a major life activity.” person was deemed to be entitled to protection Under this interpretation, even if a person under the Act if s/he had a “disability” – an suffers discrimination because s/he has an impairment that “substantially limits” a impairment, the court would treat him or her “major life activity.” as outside of the ADA’s protection because medications or other “mitigating measures” II. Restrictive Interpretations by the enable the person to function well despite the courts: impairment. Unfortunately, the initial celebration over In another case, Toyota motor mfg. of the ADA’s passage turned to disappointment kentucky v. williams, 534 U.S. 184 (2002), 1 I much appreciate the assistance provided by our Northeastern University School of Law student clerk, Sarah Burns, who ably researched some of the issues discussed in this piece and tossed around some ideas about the burden-shifting implications of the new amendments. I am also very grateful for the creative thinking and solid analytical sense of my partner, Nick Kelley, whose insights from his growing practice in disability law have proven very helpful in this examination of the amended ADA. 67 JEIBI Journal of Early and Intensive Behavior Intervention VOLUME 5 - NUMBER 3 the Supreme Court considered what a “major Congress had expected the courts to interpret life activity” is and narrowed that concept to the definition of disability liberally in keeping include only those activities that are “of with that intent, but “that expectation has not central importance to most people’s daily been fulfilled.” lives.” The amendments make it clear that the Some federal courts have effectively ADA is to be applied liberally and broadly required that more than one “major life when courts consider whether an individual’s activity” be affected by an impairment before impairment affects a major life activity a person falls within the ADA’s protection. sufficiently to warrant protection against (see, e.g., Stein v. Ashcroft, 284 F.3d 721 (7th discrimination. The objective of a court, said Cir. 2002) where the court found that an Congress, should be to ensure that entities inability to lift and to carry objects did not covered by the Act are complying with their constitute a disability because those impaired obligation not to discriminate rather than to activities were only part of the tasks required spend inordinate time and “extensive analysis” by the person’s employment and did not, considering whether an individual’s therefore, impair the major life activity of impairment qualifies him or her for protection. working.) In effect, Congress’s admonitions to the courts in the purpose section of these amendments Others have said that impairments whose may be to create a presumption that if an effects are only episodic or intermittent, such employer or other covered entity is as epilepsy or a peanut allergy, do not fall discriminating against a person with an under the ADA because their effects are only impairment, the force of law should be temporary. (see, e.g., Land v. Baptist Medical exercised to eliminate the discriminatory Center, 164 F.3d 423 (8th Cir. 1999), finding activity rather than to obsess over whether the that a child’s peanut allergy did not person in question meets some artificially substantially limit major life activities of high set of criteria to prove s/he is entitled to eating or breathing because the child’s protection under the ADA. physical ability to eat was not restricted and his ability to breathe was unrestricted when Specifically, the ADA amendments set he was not experiencing an allergic reaction). aside the williams holding that a “major life activity” must be “of central importance to III. The ADA Amendments of 2008: most people’s daily lives.” The amended ADA will provide a list of examples of major life This year Congress rejected the courts’ activities – not meant to be exhaustive – narrowing of the ADA’s scope of protection including such items as “caring for oneself, and amended the Act to correct what it performing manual tasks, seeing, hearing, considered to be misinterpretations. The eating, sleeping, walking, standing, lifting, amendments take effect on January 1, 2009. bending, speaking, breathing, learning, reading, concentrating, thinking, In a section stating the purposes of these communicating, and working.” In addition, amendments, Congress declared that its major life activities are to include bodily original intent in the ADA had been to functions such as normal cell growth, digestive eliminate discrimination against persons with functions, the functioning of the immune disabilities and to “provide broad coverage.” system, endocrine functions, neurological, The purpose section goes on to indicate that brain, and reproductive functions. 68 JEIBI Journal of Early and Intensive Behavior Intervention VOLUME 5 - NUMBER 3 The amendments clarify that if an regular function, like walking and breathing” impairment substantially limits one major life that “easily falls within the definition of activity, an individual need not show that it ‘major life activity’” under the ADA).) also limits other major life activities to be Jacques held that establishing a substantial qualified for protection. Moreover, if an limitation in the ability to interact with others impairment affects a person only episodically requires a showing that “the impairment or is in remission, it still qualifies as a severely limits the plaintiff’s ability to… disability so long as when it is active it initiate contact with other people and respond substantially limits a major life activity. to them, or to go among other people- at the most basic level of these activities.” Jacques, The amendments address the issue of 386 F.3d at 203. The Jacques court further “mitigating measures” by declaring that the elaborated that “the standard is not satisfied determination whether an impairment by a plaintiff whose basic ability to substantially limits a major life activity must communicate with others is not substantially be made “without regard to the ameliorative limited,” even if the plaintiff’s “communication effects of mitigating measures” and lists is inappropriate, ineffective, or unsuccessful.” several examples of such measures. The Id. examples include: (1) the use of medications, prosthetics and the like (including “low-vision Ms. Jacques was a plaintiff with bipolar devices” such as magnifiers, but not including disorder, but the implications of the holding ordinary eyeglasses or contact lenses); (2) the for persons with other disorders is clear. In use of assistive technology; (3) reasonable fact, the court expressly anticipated application accommodations or auxiliary aids or services; to plaintiffs with autism, stating that only the or (4) learned behavioral or adaptive most acute or profound cases of autism could neurological modifications. satisfy the standard. Jacques, 386 F.3d at 203- 204. Iv. how might these amendments affect persons with autism or others who In Comber v. Prologue, Inc., 2000 WL benefit from behavioral interventions?: 1481300 (D.Md. Sept. 28, 2000), a district court in the Fourth Circuit Court of Appeals Individuals with autism – particularly declined to find a plaintiff with autism milder forms of autism – and others with spectrum disorder, anxiety, and depression as impairments of affect, behavior and/or social disabled under the ADA. Despite evidence navigation, have sometimes been considered that showed how autism directly affects her not to be “disabled” within the protections of ability to form and maintain ordinary social the ADA because their impairments do not, in relationships, the court’s analysis relied on the reasoning of courts, sufficiently affect plaintiff’s history of employment success. major life activities. For example, In Jacques Plaintiff’s trouble with co-workers was v. DiMarzio, Inc., 386 F.3d 192 (2nd. Cir. characterized as a personality conflict and not 2004), the court refused to find social a manifestation of her disabilities. interaction to be a major life activity. (In this holding the Second Circuit Court of Appeals In addition to these restrictive readings of rejected a contrary holding from the Ninth the ADA that have limited access of those Circuit in McAlindin v. County of San Diego, with impairments affecting social skills to the 192 F.3d 1226 (9th Cir. 1999) (describing protections of the Act, one can also imagine “interacting with others” as “an essential, an employer or a private school or other entity 69 JEIBI Journal of Early and Intensive Behavior Intervention VOLUME 5 - NUMBER 3 arguing under the pre-amended ADA because of behavior arising out of autism, interpretations that in a case where a behavioral bipolar disorder, depression, and other program has substantially minimized conditions that impair their social navigation challenging behaviors for a person with skills or ability to maintain a steady emotional autism, that person is not “disabled” in the course through a day. The disability definitions of the Act because the impairment community and its advocates will watch has been “mitigated.” closely as the courts examine cases under the amended law, in hopes that the newly clarified The 2008 amendments should go far in commitment of Congress to the protection of reducing the obstacles these overly-narrow those made vulnerable by their disabilities readings of the ADA would have placed in the will actually be enforced. path of a person suffering discrimination 70