As was predicted following the passage of the ADA Amendments Act of 2008 (ADAAA), which went into effect in January 2009, there has been a subsequent surge in the filing of lawsuits under the Americans with Disabilities Act (ADA). Lawsuits brought under the ADA now comprise the highest percentage of claims filed by former employees. When compared with the number of ADA-related lawsuits filed in the first three months of 2009, there has been a nearly 40% percent increase in the number of ADA-related suits filed in 2010 during the same period. Moreover, the second quarter of 2010 saw the number of ADA-related lawsuits increase by 15% over those filed in the first quarter.
The significant increase in the number of ADA-related lawsuits is the result of the ADAAA’s express directive that the definition of “disability” is to be construed in favor of “broad coverage.” Not surprisingly, this change has encouraged Plaintiff’s attorneys regarding the prospects of successfully advancing a client’s ADA claim. More specifically, the ADAAA (i) expands the definition of “disability”– which, necessarily increases the number of individuals covered under the ADA — and (ii) shifted the focus from whether an individual is disabled to whether and how that individual should be accommodated. The ADAAA’s proposed implementing regulations, which are expected to become final later this summer, leaves no doubt that the operative question is no longer: Is an employee disabled? Instead, the key question is now: What should an employer do to accommodate the employee’s disability? For example, the proposed regulations create a list of “per se” physical and mental impairments that will “consistently” qualify as disabilities, such as cancer, blindness, deafness, epilepsy, HIV/AIDS and cerebral palsy. Additionally, the proposed regulations clarify what it means for an impairment to “substantially limit” a major life activity or major bodily function and explain how to evaluate impairments when mitigating measures are used.
In light of the significant increase in the number of ADA-related claims filed this year, and the prospect that these claims will increase, employers should be proactive in order to minimize potential exposure. First, employers should conduct a policy review to ensure that their policies and practices are up-to-date with the ADAAA and its proposed regulations. Second, employers should provide training for their human resources personnel as well as their frontline managers and supervisors regarding the ADAAA, particularly with respect to accommodation issues. Finally, employers should review and update (or prepare new) job descriptions to ensure that they include all of the essential functions of a particular position.