On September 25, 2008, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008, which made substantial changes to the definition of the term "disability" by rejecting the holdings of several Supreme Court decisions (namely, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Mfg., Ky., Inc. v Williams, 534 U.S. 184 (2002)) and portions of Equal Employment Opportunity Commission’s ADA regulations. These amendments became effective on January 1, 2009. It is important to be aware of the effect the amendments may have on employers’ duty to provide reasonable accommodations and exposure to discrimination claims.

Notable changes to the statutory text of the ADA include expanding the definition of “substantially limits” and “major life activities.” The Supreme Court had previously held that the determination of whether a disability “substantially limits” a major life activity should be judged in light of the ameliorative affects of mitigating measures, such as medications and physical aids. Specifically overturning this holding, the ADA now states:

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

The ADA also now includes two non-exhaustive lists of major life activities, which are more expansive than the previous list. The ADA Amendments Act replaced the previous major life activities with,

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major bodily functions are also included as life activities, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

Importantly, the ADA Amendments Act offers increased protections to those who are “regarded as” disabled. Previously, an individual was “regarded as” disabled if the individual could show that the employer perceived the individual as having a substantially limiting impairment. The ADA now provides that an individual meets the requirement of being “regarded as” having such an impairment “if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” This provision does not apply to transitory and minor impairments with an actual or expected duration of 6 months or less.

The effect of the ADA amendments is that, under federal law, more individuals will be considered “disabled” and afforded protection under the ADA. This means employers will need to provide reasonable accommodations to more employees. It may also cause an increase in liability for employers, as more employees will be qualified to file discrimination suits against employers. The full effects of the ADA Amendments Act of 2008 will obviously take some time to grasp as the courts work to handle and decide cases under the language of the new statute.

Adam T. Simons
University of Baltimore

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Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540, 87 Cal. Rptr. 3d 602 (Cal. App. 2009).

On January 12, 2009, in a ruling that concerns the rights of property owners and smokers alike, the California’s 2nd District Court of Appeal ruled that Melinda Burke, a 7-year old asthmatic, had standing to file suit as a tenant against her family’s apartment complex over second hand smoke in outdoor common areas.

While acknowledging that her claims may face significant challenges overcoming summary judgment, specifically the question of whether the company breached its duty to maintain premises in a safe condition, the Court of Appeal ruled that Melinda Birke demonstrated sufficient standing to withstand a demurrer.

The 2nd District found that Melinda had standing as the family member of a tenant within the apartment complex, and that her health problems of aggravation of her asthma and chronic allergies were not similar to the general public’s increased risk of heart disease and lung cancer from second hand smoke.

This ruling threatens to restrict further the rights of smokers and increase liability for property owners. In Birke, the smoking in this case occurred in outside common areas, and this ruling could prevent smokers from smoking in any place other than areas specifically designated for smokers, even in their own apartment complex. Moreover, it opens up property owners to liability for creating public nuisances by providing for cigarette disposal in common areas, and increases those members of the public to whom they owe a duty.

Adam T. Simons


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