By Corey Pray
This year marks the 30th anniversary of the Americans with Disabilities Act (ADA). The enactment of the ADA in 1990 was a major step forward for persons with disabilities in the United States, many of whom faced significant forms of discrimination in the workplace. Corey Pray spoke with Jonathan R. Mook, a partner at DimuroGinsberg and nationally recognized authority on the ADA, about the development of the ADA and its continuing positive impact for both persons with disabilities and employers. Mr. Mook is also the author of two treatises published by Matthew Bender Company, “Americans with Disabilities Act: Employer Rights and Employee Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”
Q: How did you become interested in the ADA?
A: About 30 years ago, when I was practicing employment law, Congress was considering passage of a statute that would provide legal protections for persons with disabilities in the private sector along the lines of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, age, national origin, etc. I knew at that point it was clear that legislation which had been talked about in the past was probably going to get passed and would have incredible ramifications for the country by imposing new obligations on employers and other entities. I started reading up on the ADA and discrimination law. At that time, a federal statute still in existence today, the 1973 Rehabilitation Act, accorded protections for persons with disabilities who worked for the federal government, government contractors, or entities who receive federal funding. The statute, however, applied to a more limited scope of employers, so the ADA was going to pick up on the protections in the Rehabilitation Act and apply them to all private employers of 15 or more employees. At the time, I was considering that the ADA would probably become law. I was fortunate to get a contract with Matthew Bender, which now operates as a division of LexisNexis, to write a law book about the ADA, the manuscript of which would be due within a year or so of the ADA’s enactment. I started researching the ADA, the status of people with disabilities, and the reasoning for the legislation, which was all incorporated into the book I wrote.
Q: Before the ADA, what was the status of people with disabilities in the United States? What sparked efforts in the late 1980s to create and pass the ADA?
A: The period during which the ADA was passed was a remarkable time because both Republicans and Democrats were in agreement that there was widespread discrimination against people with disabilities in our society. We were really ignoring a great resource for our country both in terms of people with disabilities becoming more employable and participating more fully in society. Legislation was needed to combat the myths and stereotypes against people with disabilities, and overall would make our country a much more productive place if enacted. In 1990, during the presidency of George H.W. Bush, a coalition of Republicans and Democrats, including Ted Kennedy and Bob Dole, the latter of whom had a war injury to his arm, all came together to pass the ADA. The ADA was passed in spring 1990 with overwhelming bipartisan support in both the House and Senate, and a signing ceremony took place on the White House lawn on July 26, 1990. July 26, 2020 will be the 30th anniversary of that signing ceremony. The ADA was a remarkable piece of legislation, one that had been fought for by disabilities advocates for many years and represented a great triumph for the legislative process. It had great buy-in by the business community, who understood that persons with disabilities have many talents that we have overlooked and with reasonable accommodations they could participate in society and help society grow.
Q: The ADA is a sizable piece of legislation. Can you describe, in your opinion, its most important provisions?
A: At its core, the ADA requires all private employers of 15 employees or more to (1) not discriminate against persons with disabilities and (2) make reasonable accommodations for persons with disabilities to enable them to work. These were strong add-ons to traditional non-discrimination statutes, particularly Title VII. The ADA introduced these general concepts of non-discrimination and reasonable accommodation. It was the responsibility of the enforcement agencies, most frequently the Equal Employment Opportunity Commission (EEOC), to write regulations to enforce the ADA. The regulations were promulgated in 1991, exactly one year after the ADA was enacted. The Act took effect in 1992 for larger employers and in 1994 for smaller employers which included employers of 15 or more.
Q: Turning to how the ADA is applied, how has this played out in the courts?
A: While the EEOC is responsible for issuing regulations, in a granular fashion it is left up to the courts to apply the ADA in specific situations. Who is disabled? The statute and regulations say a person is actually disabled if he or she has a “physical or mental impairment that substantially limits one or more major life activities.” This is a broad definition. Additionally, the definition encompasses having a record of disability or regarded as having a disability, so even if you do not have a disability but an employer thinks you do and won’t hire you, you are deemed to be disabled to enforce the nondiscrimination portions of the statute. How does this apply to someone who has a leg impairment who is able to walk just fine but has difficulty running? Or what about someone with an eye impairment who can see fairly well with glasses but without glasses cannot? What about someone with very high blood pressure who needs to take medication but can perform the job with medication? These represent just some the various issues that courts face on a daily basis. Further, what is a reasonable accommodation? The statute and regulations say an employer must accommodate a person with a disability unless it would create an “undue hardship.” An undue hardship is defined as a “significant difficulty or expense.” It was left to the courts to figure out what this means. For one employer, making an accommodation that costs $1,000 may be an undue hardship, but for a larger employer it may not be. The courts are still addressing these issues on an individual basis.
Q: Have courts treated the ADA consistently since 1990? If not, what has changed?
A: My interest as a lawyer has been in the case law development of the statute. There have been some significant developments since the ADA was passed. In 1999, the Supreme Court significantly narrowed the interpretation of who is disabled under the ADA. In many cases, even if a person was able to meet the Supreme Court’s definition, he or she might not be able to perform a job even with a reasonable accommodation. In 2008, during the final year of the George W. Bush administration, Congress reversed several prior Supreme Court decisions by enacting the ADA Amendments Act of 2008. This piece of legislation significantly broadened the definition of disability. Now, if an individual has a diagnosed impairment that limits to any significant extent that individual’s ability to perform any major life activity (e.g. seeing, hearing, walking, lifting, bending, sleeping, thinking), that person will be disabled under the ADA. So what counts as a reasonable accommodation now? There is no single answer and court decisions are issued almost every day on this.
Q: What should lawyers keep in mind when advising clients on issues that fall under the ADA?
A: The job of a lawyer is to understand the trends of where courts have been going on specific issues and to predict for your client how a court might rule in the fact-specific situation that a client is asking advice for. It continues to be an interesting area of the law because there are no easy answers and there is no one answer. The answer you give to a client is the best answer that you as an attorney can construct, as well as the reasons for the answer that you believe a court would accept. But you can’t tell your client yes or no in terms of compliance with the ADA. You can only say, “this is my best analysis and here are the reasons for it.” So attorneys need to be creative because this was a statute that was not intended to provide a specific yes-or-no answer. It set forth principles that needed to be applied in specific, fact-dependent circumstances.
Q: Are there any current ADA cases or issues to watch out for?
A: One area that has been percolating for a number of years is to what extent obesity is covered by the ADA. In 2013, the American Medical Association designated obesity as a disease. The extent to which it constitutes a physical or mental impairment for purposes of the ADA is somewhat up in the air. Courts are faced with questions such as, “what substantial limits on life activity are caused by obesity?” This issue is an interesting trend because the case law is still developing.