Title I of the Americans With Disabilities Act of 1990 (“ADA”) prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA's nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces the ADA. EEOC also provides oversight and coordination of all ADA regulations, practices, and policies.

On September 25, 2008, President Bush signed the Americans With Disabilities Act Amendments Act of 2008 ("Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations.

The ADA defines a “disability” in three ways:

• A physical or mental impairment that substantially limits one or more of the major life activities of an individual

• A record of such an impairment

• Being regarded as having such an impairment

Employees with disabilities must meet qualification standards that are job-related and consistent with business necessity and must be able to perform the “essential functions” of the position, with or without “reasonable accommodation.” The “essential functions” are the most important job duties, the critical elements that must be performed to achieve the objectives of the job. Removal of an essential function would fundamentally change a job.

If an applicant or employee cannot meet a specific qualification standard because of a disability, the ADA requires that the employer demonstrate the importance of the standard by showing that it is “job-related and consistent with business necessity.” This requirement ensures that the qualification standard is a legitimate measure of an individual’s ability to perform an essential function of the specific position the individual holds or desires. If an employer cannot show that a particular standard is “job-related and consistent with business necessity,” the employer cannot use the standard to take an adverse action against an individual with a disability.

Employers may have to provide a “reasonable accommodation” to enable an individual with a disability to meet a qualification standard that is job-related and consistent with business necessity or to perform the essential functions of his or her position. A reasonable accommodation is any change in the work environment or in the way things are customarily done that enables an applicant or employee with a disability to enjoy equal employment opportunities. An employer never has to provide an accommodation that would cause undue hardship, meaning significant difficulty or expense, which includes removing an essential function of the job.

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• Directs EEOC to revise that portion of its regulations defining the term "substantially limits";

• Expands the definition of "major life activities" by including two non-exhaustive lists:

ú         The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);

ú         The second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");

• States that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;

• Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• Provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;

• Provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and

• Emphasizes that the definition of "disability" should be interpreted broadly.

EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.