Primer on the ADA Amendments Act of 2008, relevant provisions

On September 25, 2008, the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 ("ADAAA") was signed into law. The ADAAA became effective on January 1, 2009. It massively amended the ADA, in the following ways, among others (with application to the facts of my individual case shown for purposes of illustration):

  1. . A provision of the ADA as originally enacted in 1990 provided that “nothing in this chapter shall be construed to apply a lesser standard than the standards applied under the Rehabilitation Act of 1973(29 US.C. 790 et seq.) or the regulations issued by federal agencies pursuant to such title.” 42 U.S.C. sec. 12201(a).
  2. . In its uncodified findings incorporated into the ADAAA, Congress found that "while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled." ADAAA, sec. 2(a)(3) (emphasis added).
  3. . Case law under the Rehabilitation Act prior to the original enactment of the ADA in 1990 tended to treat bipolar disorder as prima facie a “handicap” for purposes of the Rehabilitation Act. See, Carty v. Carlin, 623 F.Supp. 1181 (D. Md. 1985); Matzo v. Postmaster General, 685 F.Supp. 260, 262-263 (D.D.C. 1987). Both the Kansas Board of Law Examiners’ 1993 recommendation against me and its 2007 recommendation against me were based in large part on a finding of “bipolar disorder, in remission.”
  4. . In its uncodified statutory findings incorporated into the ADAAA, Congress further found that "Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases”—i.e., Murphy v. United Parcel Service, 527 U.S. 471 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999)—had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect," and that Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) had "interpreted the term ‘substantially limits’ to require a greater degree of limitation than was intended by Congress," with the net effect that "lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities." ADAAA, sec. 2(a)(4)-(7) (emphasis added).
  5. . Among the purposes stated by Congress for the enactment of the ADAAA is the purpose to "to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA." ADAAA, sec. 2(b)(1).
  6. . Congress implemented this broad purpose in part by adding to ADA a statutory "rule of construction" that instructs courts to construe the entire ADA "in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter." ADAAA, sec. 4(a)(4)(A), codified as 42 U.S.C. sec. 12102(4)(A).
  7. . With regard to the first prong of the definition of a "disability" under the ADA, the "actual disability" prong, the uncodified statutory purposes of the ADAAA also include a purpose "to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and that to be substantially limited in performing a major life activity under the ADA ‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.’" ADAAA sec. 2(b)(4).
  8. . The uncodified statutory purposes of the ADAAA also include a purpose "to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), for ‘substantially limits,’ and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis." ADAAA, sec. 2(b)(5) (emphasis supplied).
  9. . Congress implemented these purposes with regard to the first prong of the definition of a disability in part by adding a statutory "rule of construction" that "[t]he term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008." ADAAA, sec. 4(a)(4)(B), codified as 42 U.S.C. sec. 12102(4)(B). According to repeated statements in the legislative history of the statute, this "rule of construction" was added to ensure that the courts would not simply ignore Congress’ instructions to abandon the analysis used in Sutton and its "companion cases" and in Toyota Motor Manufacturing but would adopt in its place a rule of broad coverage . See, e.g., 154 Cong. Rec. S8841-8842 (Sep. 16, 2008) (Report of Managers of S. 3406); 154 Cong. Rec. S8349-8350 (Sep. 11, 2008) (Remarks of Sen. Harkin); 154 Cong. Rec. H6068-6069 (June 25, 2008) (Remarks of Rep. Conyers); 154 Cong. Rec. H8290 (Sep. 17, 2008) (Remarks of Rep. Nadler).
  10. . Congress also implemented its purpose to broaden the first prong of the definition of a disability in part by incorporating into the ADA a broad statutory definition of "major life activities" and by incorporating into this definition a separate paragraph including a list of "major bodily functions." ADAAA, sec. 4(a)(2), codified as 42 U.S.C. sec. 12102(2). "Learning," "thinking," "communicating" and "working" are included in the new list of "major life activities." ADAAA, sec. 4(a)(2)(A), codified as 42 U.S.C. sec. 12102(2)(A). "Neurological" and "brain" functions are included in the new list of "major bodily functions." ADAAA, sec. 4(a)(2)(B), codified as 42 U.S.C. sec. 12102(2)(B). The evidence presented at the Board of Law Examiners’ hearings in both 1992 and 2006 amply demonstrates that my condition, whether diagnosed as bipolar disorder, or Asperger’s Disorder, or both, affects neurological and brain functions and interferes with learning of social skills, thinking, communicating and working, and at one time substantially interfered with these major life functions, although the effects of these conditions have been mitigated by years of psychiatric treatment and personal learned adaptations.
  11. With regard to the effect of mitigating measures on the determination of a "disability," in the ADAAA Congress declared its purpose "to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures." ADAAA, sec. 2(b)(3).
  12. Congress implemented its purpose to reject the holdings of the Sutton line of cases regarding mitigating measures by adding a statutory "rule of construction" that "the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures." ADAAA, sec. 4(a)(4)(E)(i), codified as 42 U.S.C. sec. 12102(4)(E)(i).
  13. Paragraph 4(a)(4)(E) of the ADAAA also includes an "illustrative but non-comprehensive list of the types of mitigating measures that are not to be considered." 154 Cong. Rec. S8842 (Sep. 16, 2008) (Report of Managers of S. 3406). That illustrative list includes both "medication" and "learned behavioral or adaptive neurological modifications." ADAAA, sec. 4(a)(4)(E)(i)(I) and (IV), codified as 42 U.S.C. sec. 12102(4)(E)(i)(I) and (IV).
  14. Psychiatric medication is, obviously, "medication," and the choice to continue receiving treatment from a psychiatrist on a regular basis, as directed, can properly be characterized as a "learned behavioral modification." Thus, whether my condition constitutes a "disability" for purposes of the ADA, after January 1, 2009, should be judged based on what his condition would likely be if I had never sought treatment.
  15. With regard to the first prong of the definition of a "disability," in the ADAAA, Congress also added to the ADA a statutory "rule of construction" that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." ADAAA, sec. 4(a)(4)(D), codified at 42 U.S.C. sec. 12102(4)(D). Thus, in determining whether I have a "disability" for purposes of the ADA, the Court should consider have considered that my condition was substantially limiting, under the new and broadened definition, when it was active—it led to a four month psychiatric hospitalization in 1985. The fact that my condition has been in remission since sometime before 1992 will, under the ADAAA, no longer be relevant to the issue whether that condition brings me within the protection of the ADA.
  16. Even before the ADAAA was enacted, at least one Federal appellate court had held that disqualification from the practice of law, an entire licensed profession, because of an impairment constituted disqualification from a "class of jobs" under the regulatory definition of the major life activity of "working." Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 83-84 (2nd Cir. 2000). This reasoning in Bartlett is specifically approved in the legislative history of the ADAAA. 154 Cong. Rec. H8290-8291 (Sep. 17, 2008) (Colloquy between Rep. Stark and Rep. Miller).
  17. Furthermore, the ADAAA added to the ADA a statutory rule of construction that "[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability." ADAAA, sec. 4(a)(4)(C), codified at 42 U.S.C. sec. 12102(4)(C). Thus, after January 1, 2009, an impairment that limits the major life activity of "working," due to the denial of a license to practice a profession as a result of the impairment, need not limit any other major life activity in order to constitute a protected "disability."
  18. With regard to the third prong of the definition of a "disability," the "regarded as disabled" prong, in the ADAAA Congress stated the purpose "to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of a disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of a handicap under the Rehabilitation Act of 1973." ADAAA, sec. 2(b)(3) (emphasis added).
  19. To implement this purpose, Congress amended the definition of the third prong of the definition of a "disability" to clarify that, in order to show discrimination under the third prong, an individual must show only that a regulated entity took action against him or her because of a perceived physical or mental impairment, and need not show that the perceived impairment would qualify as a disability under the first prong of the definition. ADAAA, secs. 4(a)(1)(C) and 4(a)(3), codified as 42 U.S.C. secs. 12102(1)(C) and 12102(3).
  20. In my case, both the 1992 and the 2007 Reports of the Board of Law Examiners show that my applications were denied in large part on the grounds that I had a psychiatric condition that, at a minimum, constitutes an "impairment," and that the Board was dissatisfied with the evidence regarding the treatment and prognosis of that impairment. After January 1, 2009, this reliance on a perceived mental impairment in making an adverse licensing decision will be in itself sufficient to bring me within the protection of the ADA.
  21. Complete freedom from mental or developmental disorders such as are shown by the Board of Law Examiners’ 1992 and 2007 findings in my case is not a "necessary" eligibility criterion to practice law for purposes of 28 C.F.R. sec. 35.130(b)(8), neither would modification of the Court’s policies to permit the admission of applicants with a long history of successful treatment and control of such conditions and upon proof of only a low risk of recurrence (rather than "no risk") "fundamentally alter" the nature of attorney licensure for purposes of 28 C.F.R. sec. 35.130(b)(7). The non-essential status of these selection criteria is demonstrated by the fact that attorneys who develop similar conditions to mine after licensure are sometimes permitted to retain their licenses upon a showing of successful treatment, even though they are still under treatment and are unable to show there is "no" risk. See, e.g., In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999) discharged from probation 276 Kan. 2 (2003); In re Herman, 254 Kan. 908, 869 P.2d 721 (1994), discharged from probation, 246 Kan. 497 (1999). Thus, these selection criteria, which appear to have been applied in my case, are now clearly subject to regulation under the ADA as of January 1, 2009.
  22. The ADA, as originally enacted in 1990, conferred upon the Attorney General the power to promulgate regulations implementing Title II. 42 U.S.C. sec. 12134. This regulatory authority was reaffirmed and reinforced by the ADAAA. ADAAA, sec 6(a)(2), codified as 42 U.S.C. sec. 12205(a). Thus, the Attorney General's authority to promulgate the regulations discussed on the main page of this site was reinforced by the ADAAA.

This page is a continuation of a portion of the argument of another web page, The Hidden Issue of Disability Discrimination in Attorney Licensure in Kansas. To understand why I've posted this page, please read that page first.

Links to the supporting documents referenced.