Labor Employment Law Blog

On September 25, 2008, the ADA Amendments Act of 2008 (the “Act”) was signed into law by President Bush. The Act, which is effective January 1, 2009, expands the scope of disabilities covered under the Americans with Disabilities Act of 1990 (the "ADA"). In part, the Act broadens the scope of protection available to employees by rejecting two Supreme Court decisions which had narrowly construed the definition of “disability” under the ADA.

The Ninth Circuit's holding in Gribben v. United Parcel Service illustrates the principle that employing an overly technical analysis to determine an employer’s obligations to its employees under the Americans with Disabilities Act ("ADA") is risky.  The ADA requires employers to provide reasonable accommodation to qualified individuals with disabilities, which it defines as “physical or mental impairment[s] that substantially limit[] one or more of the major life activities of [an] individual.”  The regulations interpreting this statute further explain that the requisite substantial limitation may be shown where a person is “[u]nable to perform a major life activity that the average person in the general population can perform.”

Employers who use across the board qualification standards, such as hearing and vision tests, to reduce safety risks that potentially screen out disabled employees may need to reevaluate these standards.  In Bates v. UPS, the Ninth Circuit tightened the already stringent standards for employers who use such across the board qualification standards in the name of safety.  The Americans with Disabilities Act ("ADA") has long been construed to allow employers to use qualification standards which screen out certain disabled individuals as long as the standards relate to an essential job function and are justified by "business necessity."  The Ninth Circuit recently determined that showing justification by "business necessity" requires an individual assessment of each applicant or employee in order to determine whether reasonable accommodation might permit the applicant or employee to safely perform the job.

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In Head v. Glacier Northwest Inc., the United States Court of Appeals for the Ninth Circuit held that the Americans with Disabilities Act ("ADA") does not require employees to produce comparative or medical evidence to create a genuine dispute of material fact as to whether they have an impairment that substantially limits a major life activity. Further, the Ninth Circuit also held that an employee need only prove that his disability was a "motivating" factor in an employer's decision to terminate him or otherwise take an adverse employment action against him. Taken together, these two holdings further stack the deck against employers in ADA lawsuits.