Utah Law Review
Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.” Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let’s try this again” mode, Congress enacted the ADAAA in 2008 as a multi-faceted attempt to override the restrictive court rulings. A crucial cornerstone of the 2008 act is a compromise concerning the scope of the “regarded as” prong of the disability definition. One aspect of the compromise is a dramatic expansion in the coverage of individuals adversely treated on the basis of an actual or perceived impairment. This expansion, however, is tempered by two accompanying limitations that exclude coverage of transitory and minor impairments and that eliminate any duty on the part of employers to provide reasonable accommodations to individuals who qualify as disabled solely under the “regarded as” prong. This article chronicles the history of the ADA, the judicial backlash, and the events leading to the enactment of the ADAAA. The article then proceeds to discuss the likely impact and nagging concerns implicated by the “regarded as” compromise. The ADAAA clearly is welcome legislation that expands the class of individuals protected against disability discrimination and employment decisions premised on stereotypical preconceptions. The “regarded as” compromise, however, also comes with a series of nagging questions that have the potential to hinder the ultimate goals of the new legislation and perhaps even unleash a new judicial backlash. These areas of uncertainty must be closely monitored in the years ahead to ensure that the courts do not again frustrate the ADA’s reinvigorated promise.
Stephen F. Befort, Let's Try This Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the "Regarded As" Prong of the Statutory Definition of Disability, 2010 Utah L. Rev. 993 (2010), available at https://scholarship.law.umn.edu/faculty_articles/360.