Last week, by an overwhelming majority, the U.S. House of Representatives passed statutory amendments to the Americans with Disabilities Act intended to expand the definition of protected disabled individuals under the law.  The ADA Amendments Act of 2008 is intended to reverse federal courts’ rejection of a large majority of ADA claims before the plaintiff has a chance to prove discrimination.  These cases are routinely dismissed because the plaintiff does not qualify as a protected disabled individual under the ADA.

The new law would make several key changes to the definition of disability under the ADA.  First, a protected disabled person would include anyone with a condition that materially restricts one major life activity, even if the condition is currently in remission.  This change would effectively reverse the U.S. Supreme Court’s Toyota Motor Mfg. v. Williams decision, which narrowly defined protected individuals under the ADA.  A second change would reverse the Supreme Court’s Sutton v. United Air Lines decision by making the disability determination without regard to any corrective measures taken by the employee or applicant.

The intent of the new law is to avoid court decisions such as several cases finding employees with cancer not to be covered under the ADA, because they could not prove a current impairment of a major life activity.  The law directs courts to broadly construe the definition of disability.

The bill attracted large majorities of both parties because it resulted from careful negotiations between business and disability advocacy rights groups.  In return for the expanded definition of disability, the Act would restrict the definition of protected individuals “regarded as” disabled under the ADA.  It would exclude transitory or minor ailments, and would remove any obligation by employers to accommodate a perceived disability.

The new law is likely to pass the Senate in the upcoming weeks, and to be signed into law by President Bush.  It may increase litigation and litigation risks under the ADA by increasing the number of claims that survive summary judgment.  Employers’ focus will likely shift from litigating the definition of disability, to proving that the person was accommodated or not otherwise discriminated against.