ADA Amendments Act

What does it mean for people who are deaf or hard of hearing?

By Howard A. Rosenblum, Esq.

When the Americans with Disabilities Act (ADA) became law in 1990, people with disabilities believed they finally would have equality in many aspects of life. Barriers and condescending attitudes would be gone, replaced with equal access and equal opportunities. While the ADA has opened many doors to access, change has come slowly.

Ten years ago, the ADA faced important challenges from the Supreme Court of the United States. In June 1999, the Supreme Court ruled in three cases that job-seeking plaintiffs could not file complaints under the ADA because each of them did not have a disability as defined under the ADA. Yet in each of those cases, the employer refused to hire the plaintiff because the plaintiff has a disability. In Sutton v. United Airlines, the Supreme Court held that a person who is legally blind but uses corrective glasses to see well does not have a disability under the ADA.

In Murphy v. United Parcel Service, the Supreme Court found that a person who has high blood pressure but takes medication to control it does not have a disability under the ADA.

In Albertsons Inc. v. Kirkingburg, the Supreme Court ruled that a person who has monocular vision but has learned to compensate for it does not have a disability under the ADA.

These three rulings became known as the "mitigating measures" cases and changed how the definition of disability is interpreted under the ADA. The ADA defines a disability as a "physical or mental impairment that substantially limits one or more major life activities." The ADA also defines disability to include when someone is regarded as having a disability or has a record of disability.

The Supreme Court declared that the way to decide if a person was substantially limited in a major life activity was to measure their ability to do the activity if they used devices (such as glasses or hearing aids), medication, or had learned how to be able to do the activity well despite having a physical or mental impairment. The Court also ruled that a person must be substantially limited in more than one major life activity to have a disability. In a 2002 case, Toyota v. Williams, the Supreme Court made it harder for a person to prove a disability by requiring that person to show not just a "substantial limitation" but rather a "severe restriction" in any major life activity such as hearing.

People who are deaf or hard of hearing who cannot hear well enough to communicate with others, even with hearing aids or cochlear implants, still would meet the definition of a person with a disability under the ADA. However, deaf or hard of hearing individuals who hear well enough to carry on a conversation using a hearing aid or cochlear implant may not have a "disability" under the Supreme Court's view of the ADA.

In 2008, Congress passed the ADA Amendments Act (ADAAA) to remove the mitigating measures from the definition of "disability" under both the ADA and the Rehabilitation Act of 1973. Under the ADAAA, a person has a disability regardless of whether there is a way to mitigate the disability with devices, medication, or other compensations. In addition, a person has a disability even if that person is substantially limited in only one major life activity. This law became effective January 1, 2009.

How does this law affect people who are deaf or hard of hearing?

If a person cannot hear well even with a hearing aid or cochlear implant, then that person most likely already was considered to have a disability under the ADA and still would be considered disabled under the new ADAAA. If a person can hear fairly well with a hearing aid or a cochlear implant but cannot hear without such assistance, then that person might not have been protected as a person with a disability under the old definition, but is now likely to be protected under the ADAAA. If a person is able to hear fairly well even without hearing aids or cochlear implants, then that person may not be protected as a person with a disability under either the old ADA or the amended ADA.

The purpose of the ADAAA is to clarify who is protected under federal disability rights laws. It is hopefully the first step toward realizing the ideal of true equality for everyone, including people with disabilities.

www.pepnet.org