1. “Mitigating Measures” will rarely be an issue. As you may recall, the Supreme Court has held, in a very controversial decision, that persons who used mitigating or corrective measures – such as a prosthetic device or medication – to offset the effects of an impairment might not be disabled, and therefore not entitled to protection under the ADA. Congress has basically overturned this decision, by providing in the ADAAA that a court must determine whether an impairment substantially limits a major life activity “without regard to the ameliorative effects of mitigating measures.” The only exception to this, is that the mitigating effects of eyeglasses or contact lenses may be taken into account.

2. It will be easier to sue if one believes that he/she is “regarded as being disabled.” This may be the most significant change. Persons who are regarded as being disabled are as entitled to ADA protection as are those with actual disabilities. In the past, employers had alternative defenses to the “regarded as” claim. First, it could say “we did not regard you as being impaired.” Second, it could say that “even if we regarded you as having an impairment, the impairment is not a disability, because it does not substantially limit a major life activity. Therefore, you are not regarded as being “disabled.”” That second defense is pretty much gone under the ADAAA. Now, one can meet the requirement of being regarded as disabled by showing that he or she has been subject to discrimination “whether or not the impairment limits or is perceived to limit a major life activity.” This almost certainly will result in a significant increase in litigation under the ADA.

3. You do not have to provide a reasonable accommodation to someone who is regarded as being disabled, if they are not actually disabled. The Courts have disagreed as to whether someone regarded as disabled is entitled to a reasonable accommodation. The ADAAA provides that no such accommodation is necessary, and that “regarded as” plaintiffs must show some type of discrimination against them.

4. The definition of a “major life activity” has been expanded. In order to be disabled, one must be substantially limited in “a major life activity.” There have frequently been disputes as to which activities are “major life activities.” The ADAAA provides that such activities “include, but are 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.”