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By Business and Legal Reports, Inc.

On Sept. 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), updating the Americans with Disabilities Act to provide broader disability protections. While the changes mean that many more American workers will qualify as disabled under the ADA, California’s Fair Employment and Housing Act (FEHA) remains as strict as the newly amended ADA—and even stricter in some respects. Nevertheless, be on the lookout for an increase in disability bias lawsuits, as employee awareness of disability rights issues will be sharpened with the publicity surrounding the new law.

Here we take a look at the highlights of the ADAAA, pointing out how it interacts with California law.

Mitigating Measures

The ADAAA directs that a determination that an impairment substantially limits a major life activity must be made without considering the ameliorative effects of mitigating measures. This overturns a U.S. Supreme Court decision permitting employers to consider the effects of mitigating measures. The new law also lists examples of mitigating measures, including medication, hearing aids or cochlear implants, and mobility or prosthetic devices, but excluding ordinary eyeglasses and contact lenses. Despite this change, note that the California FEHA is still stricter, as it already provides that mitigating measures—including eyeglasses and contact lenses—aren’t considered in determining whether a major life activity is limited.

Major Life Activities

The ADAAA adds a long list of functions that qualify as major life activities, including, but not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The operation of major bodily functions also amounts to a major life activity. The FEHA doesn’t provide a laundry list as does the ADAAA, but it does specify that the term “major life activity” must be broadly construed.

‘Substantially Limits’

The ADAAA rejects a previous Supreme Court decision and Equal Employment Opportunity Commission regulation construing “substantially limits” to mean significantly or severely restricted, finding such stringent interpretations to be inconsistent with the ADA’s intent. The FEHA continues to have a more relaxed standard, requiring only that a major life activity be “limited.”

‘Regarded As’ Protections

To fall under the “regarded as” prong of disability, the ADAAA requires an individual to prove that he or she was discriminated against because of an actual or perceived impairment, even if the impairment does not limit or is not perceived to limit a major life activity. Previously, employees were required to demonstrate that actual or perceived impairment was believed to be substantially limiting.

The ADAAA also specifies that employers are not required to reasonably accommodate an individual who is “regarded as” disabled. In 2006, however, a California Court of Appeal held in that the FEHA does require reasonable accommodation in a “regarded as” situation.

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