Reprinted with the permission of Aspen Publishers, from AIDS and the Law, Fourth Edition, 2008-2009, www.aspenpublishers.com

The ADA Amendments Act of 2008[1] (ADAAA) significantly amends the Americans with Disabilities Act in several respects that are highly relevant to discrimination claims of individuals with HIV/AIDS. Because the ADAAA was effective January 1, 2009, [2] counsel should be aware of its provisions for cases arising on or after that date.

The ADAAA significantly enhances nondiscrimination protection under the ADA and the Rehabilitation Act and legislatively reverses judicial trends, including several Supreme Court rulings, that have weakened the ADA. The ADAAA also reverses narrow interpretations of the disability definition of the ADA by the Equal Employment Opportunity Commission. The ADAAA incorporates the amended disability definition into the Rehabilitation Act so that the definition of disability is the same for both statutes.[3]

Legislative Summary

The ADA Amendments Act makes the following changes in the ADA:

• Redefines the key concept of disability as a “physical or mental impairment that substantially limits one or more major life activities”[4] by adding an illustrative and nonexclusive list of 18 major life activities, including working. Additionally, “major life activity” is defined to include “the operation of a major bodily function,” which in turn is defined by a nonexclusive list of 11 functions, including “immune system” and “reproductive functions.”[5]

• Provides that the definition of disability includes impairments that are “episodic or in remission” if the impairment “would substantially limit a major life activity when active.”[6]

• Reverses the Supreme Court’s ruling in Sutton v. United Air Lines, Inc.,[7] which held that mitigating measures must be taken into account in determining whether an individual has a disability under the ADA; instead, the determination of whether an individual has an impairment that substantially limits a major life activity is to be made without regard to whether the individual uses mitigating measures such as “medication” or “medical supplies.” The ameliorative effects of ordinary eyeglasses or contact lenses (but not “low-vision devices”), however, are to be considered in determining whether an individual has a disability.[8]

• Clarifies the ADA that under Titles I, II, and III, a reasonable accommodation or reasonable modification to policies, practices, or procedures need not be provided to an individual who meets only the “regarded as” disabled definition. Such accommodations or modifications are only required for individuals with an actual disability or record of disability.[9]

• Reverses the Supreme Court’s ruling in Toyota Motor Manufacturing v. Williams,[10] which held that the definition of disability is to be strictly interpreted to create a demanding standard; instead, the rule of construction for the ADA is that it is to be construed “in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”[11]

• Obviates the Supreme Court’s ruling in Sutton v. United Air Lines, Inc.,[12] which held that the ADA did not confer authority on any agency to issue regulations interpreting the term “disability”; instead, a grant of rulemaking authority is given to the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation to interpret the ADA’s disability definition.[13]

• Reverses the Supreme Court’s ruling in Sutton v. United Air Lines, Inc.[14] in which the Court narrowed the definition of the “regarded as” prong from that set forth by the Court in School Board of Nassau County v. Arline;[15] instead, to make out a “regarded as” claim, the individual would only have to show that he or she was subjected to an action prohibited by the ADA because he or she had a physical or mental impairment or was perceived as having such an impairment, whether or not the impairment limits or is perceived to limit a major life activity. Impairments that are transitory and minor (with an actual or expected duration of six months or less), however, are not impairments under the “regarded as” prong of the disability definition.[16]

These amendments significantly heighten nondiscrimination protections for individuals with or perceived to have HIV. First, because the ADA as amended defines “disability” as being a physical impairment that substantially limits the major life activity of immune system function, then all individuals with HIV would be covered, although it still would be necessary to allege and prove that an individual with HIV is substantially limited in that major life activity. Such proof should be easy to provide, because HIV infection affects, among others, the hemic and lymphatic systems of the body. Moreover, by removing consideration of mitigating measures, such as medications, in determining whether an individual has a disability, courts must view HIV disease as though it were not treated, with the result that it would be an illness resulting in substantially impaired immune system function, significant disabling symptoms, and significantly shortened life expectancy. Therefore, for purposes of this definition of disability, it would make little difference whether the individual was diagnosed with asymptomatic HIV infection or diagnosed with AIDS.[17] Additionally, for individuals asserting that they were regarded as disabled based on actual or perceived HIV infection, they need only show that they were viewed as being infected with HIV. Under the ADAAA, whether their impairment (HIV infection) is also perceived to limit a major life activity is irrelevant. Nor would it matter whether they are in fact infected with HIV. An erroneous perception regarding such an impairment is adequate to support a claim of discrimination.

Legislative History

Congressional consideration of the ADA Amendments Act of 2008 was preceded by the much more broadly worded ADA Restoration Act of 2007.[18] The Senate version of the ADA Restoration Act was introduced on July 26, 2007, and referred to the Committee on Health, Education, Labor, and Pensions, which held a hearing on the bill on November 15, 2007. The House version was also introduced on July 26, 2007, and referred to the Committee on Education and Labor, which held a hearing on the bill on January 29, 2008.[19] It was also referred to the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties, which held hearings on the bill on October 4, 2007. The bill was also referred to the Transportation and Infrastructure Committee, and Energy and Commerce Committee. On June 23, 2008, the House Committee on Education and Labor reported favorably on the bill, substituting the ADA Amendments Act.[20] Two days later, the ADA Amendments Act passed by a vote of 402-17 in the House. On September 11, 2008, the Senate passed its version of the ADA Amendments Act[21] by unanimous consent vote. The bill was then returned to the House and passed on September 17, 2008, by an unrecorded voice vote. The Act was signed into law by President George W. Bush on September 25, 2008.

The legislative history contains several expressions of concern about the need to amend the ADA to enhance the rights of individuals with HIV/AIDS. Generally, however, there was only very limited debate about the bill, given the strong bipartisan support that resulted in quick and noncontroversial passage.

The report of the House Committee on Education and Labor accompanying the ADA Amendments Act cited the case of a five-year-old child with HIV, United States v. Happy Time Day Care Center,[22] as an example of a case in which the “courts struggled” to determine whether a plaintiff with HIV had a disability under the ADA. The Committee stated its expectation that under the ADA Amendments Act plaintiffs such as the five-year-old plaintiff “could establish a material restriction on major bodily functions that would qualify them for protection under the ADA.”[23] The only reference to HIV/AIDS in the initial House debate on the bill is the statement of Rep. Nadler (D-NY), who voiced his disapproval of cases in which courts had construed the ADA not to cover HIV as a disability.[24]

During the debate in the House before final passage of the bill, Rep. Baldwin (D-WI) stated her support for the bill and referred to the need to clarify coverage of HIV as a disability under the ADA:

Due to [the Supreme Court's decision in Toyota Motor Manufacturing v. Williams[25]] and other narrow court interpretations, people with HIV who have been fired, not hired, or suffered other adverse employment actions have been denied the protections of the ADA. Although the ADA clearly intended to protect people living with HIV from being discriminated against based on having HIV, many have had their lawsuits derailed by disputes over whether they meet a narrowly interpreted definition of the term “disability.” For people living with HIV, all too often whether or not they could proceed with their discrimination claim has turned on the court’s view of evidence as to their child-bearing ability and intentions: highly personal, intimate matters that are completely unrelated to the discrimination they experienced.

The ADA Amendments Act remedies the courts’ misinterpretation of the ADA by explicitly stating that the definition of “disability” must be interpreted broadly to achieve the ADA’s remedial purposes, by clarifying the definition of “disability” through examples of “major life activities,” and by providing 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. Of significance for people living with HIV, among the listed examples of “major life activities” are “functions of the immune system,” as well as “reproductive functions.” Under these new provisions, many individuals who were incorrectly denied coverage under the ADA will now be protected from discrimination.[26]

Rep. Baldwin then disapprovingly discussed several cases that had ruled that HIV infection is not a disability,[27] and concluded:

[M]any people with HIV have been denied coverage under the ADA and therefore left without any legal recourse against discrimination. Under the ADA Amendments Act, these men and women will all be assured legal protection for discrimination based on their HIV status, irrespective of their child-bearing intentions or lack of expert testimony about HIV’s impact on child-bearing.

By passing the ADA Amendments Act, we reaffirm the right for American workers – including any American living with HIV – to be judged based upon their skills, talents, loyalty, character, integrity and work ethic. I am pleased to support this bill to ensure that all Americans have a fair opportunity to work.[28]

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[1] Pub. L. No. 110-325, 2008 U.S.C.C.A.N. (122 Stat.) 3553, amending 29 U.S.C. §§ 705-706, 42 U.S.C. §§ 12101-12103, 12111-12112, 12114, 12201, 12206-12213.

[2] Pub. L. No. 110-325, § 8, 2008 U.S.C.C.A.N. (122 Stat.) 3553, 3559.

[3] Pub. L. No. 110-325, § 7, 2008 U.S.C.C.A.N. (122 Stat.) 3553, 3558. All subsequent section references to the ADAAA are to Public Law No. 110-325.

[4] 42 U.S.C. § 12102(2), covered in § 3.02[E].

[5]Section 4(a), amending 42 U.S.C. § 12102.

[6]Section 4(a), amending 42 U.S.C. § 12102.

[7] 527 U.S. 471, 492 (1999). Although the ADAAA in its findings, § 2(a)(4), explicitly rejects Sutton, by implication the ADAAA also reverses its companion cases, Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565-66 (1999) and Murphy v. United Parcel Service, Inc. 527 U.S. 516, 521 (1999).

[8]Section 2(b)(2), § 4(a), amending 42 U.S.C. § 12102.

[9]Section 6(a), amending 41 U.S.C. § 12201.

[10] 534 U.S. 184 (2002).

[11]Section 2(b)(4), (5); § 4(a), amending 42 U.S.C. § 12201.

[12] 527 U.S. 471, 479 (1999).

[13]Section 6(a)(2).

[14] 527 U.S. 471 (1999).

[15] 480 U.S. 273 (1987)

[16]Section 2(b)(3), § 4(a), amending 42 U.S.C. § 12201.

[17] The outcome in EEOC v. Lee’s Log Cabin, Inc., 436 F. Supp. 2d 992 (W.D. Wis. 2006), aff’d on other grounds,546 F.3d 438 (7th Cir. 2008), reh’g en banc denied, 554 F.3d 1102 (7^th Cir. 2009) which relies in part on distinguishing between HIV positive status and AIDS, is less likely under the ADA as amended.

[18] S. 1881/H.R. 3195, 110^th Cong. (2007).

[19] See Full Committee Hearing: “H.R. 3195, the ADA Restoration Act of 2007,” (Jan. 29, 2008).

[20] H.R. Rep. 110-730, pts. 1 & 2 (2008).

[21] S. 3406, 110^th Cong. (2008).

[22] 6 F. Supp. 2d 1073 (W.D. Wis. 1998).

[23] H. Rep. 110-730, pt. 1, at 12; pt. 2, at 17 (2008).

[24] 154 Cong. Rec. H6064 (daily ed. June 25, 2008).

[25] 534 U.S. 184 (2002).

[26] 154 Cong. Rec. H8297 (Sept. 17, 2008).

[27] Blanks v. Sw. Bell Commc’ns, Inc., 310 F.3d 398 (5th Cir. 2002); Cruz Carrillo v. AMR Eagle, Inc., 148 F. Supp. 2d 142 (D.P.R. 2001); Gutwaks v. Am. Airlines, Inc., No. 3:98-CV-2120-BF, 1999 U.S. Dist. LEXIS 16833, 1999 WL 1611328 (N.D. Tex. Sept. 2, 1999).

[28] 154 Cong. Rec. H8298 (Sept. 17, 2008).