Effective January 1, the ADA Amendments Act (ADAAA) made major changes to the definition of a protected disabled individual under the Americans with Disabilities Act.  As expected, plaintiffs alleging disability discrimination prior to ADAAA's effective date are arguing that the new disability definitions should apply to their pending claims.  Last week, the Ninth Circuit Court of Appeals dodged the retroactivity question, but nevertheless used ADAAA as guidance in deciding a pending disability discrimination case.

In Rohr v. Salt River Agricultural Improvement and Power District, the plaintiff has Type II diabetes.  His employer sought dismissal of his ADA failure to reasonably accommodate suit by claiming that the plaintiff did not meet the pre-ADAAA definition of disability.  The plaintiff argued, among other things, that Congress intended ADAAA's standards to apply to pending claims.

The Ninth Circuit avoided the direct question of ADAAA retroactivity by concluding that the plaintiff met the pre-ADAAA definition of a protected disabled person.  While it explicitly declined to address the retroactivity question, the court went on to use ADAAA as part of its justification for its conclusion.  The Ninth Circuit stated that ADAAA's legislative history contains Congress' explanation of its original intent behind the ADA's disability definition.

If other federal courts use this approach, ADAAA could be used to bootstrap the new standards for preexisting claims.  While ADAAA is fairly clearly meant to apply only to alleged discrimination occurring after January 1, if courts conclude that the new law simply provides guidance as to what the meaning of the ADA has been all along, it could open the way to use of its provisions in existing claims.

So far, the EEOC has rejected this approach in administrative charges, only applying ADAAA to new claims.  However, employers facing pending ADA charges and lawsuits can expect plaintiffs to use the Rohr decision as part of their argument for retroactive application.