Carol J. Miller


Part I of this Article recognizes the difficulty in calculating how many workers are disabled. Such difficulties have been used by the courts to justify differing interpretations of what constitutes a disability. This Part also discusses the origin of the ADA and provides a brief overview of the 2008 ADAAA. Part I of the Article examines the United States Supreme Court's interpretations that narrowed the construction of what is a "substantial limitation" and what is an ADA disability. This Part highlights the lack of consensus between the courts, Congress, and the EEOC, as well as the courts' apparent disregard of the congressional intent that the ADA serve as a vehicle for meaningful protection of disabled workers. Part III discusses the 2008 amendments and the 2009 proposed EEOC regulations with particular focus on (a) the broad scope of disability protection; (b) the expansion of what qualifies as major life activities; (c) the broad construction of "substantially limits"; and (d) the role of mitigating measures. Part IV examines limitations and ambiguities in the ADAAA, including the criteria for being "regarded as having such an impairment," and identifies future disability-related challenges. The conclusion supports congressional intent to provide broader protection for disabled employees and addresses the inherent contradictions posed by the new EEOC definition of "substantially limits." It also recognizes the difficulty in applying a definition that explains what the phrase does not mean rather than defining what it does mean. Finally, the conclusion recommends an alternate definition of a "substantial limitation" of a major life activity.

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