SLF LABOR AND EMPLOYMENT ALERT July 2008

ADA RESTORATION ACT LOOMS ON THE HORIZON

The ADA Restoration Act of 2008 (“Act”) has passed the U.S. House of Representatives and has been forwarded to the U.S. Senate for a vote. If passed and signed into law, the Act will dramatically impact employers. The Act, which in its current form represents a compromise to similar legislation introduced in 2007, has gained the support of the business lobby and labor groups and appears headed for passage.

The primary impetus for the Act is to undo several decisions of the U.S. Supreme Court that narrowed the scope of the Americans With Disabilities Act (“ADA”). The stated purposes of the Act are: (1) “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA;” (2) “to reject the requirement enunciated by the Supreme Court in [Sutton] and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigations measures;” (3) “to reject the Supreme Court’s reasoning in [Sutton] with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;” (4) “to reject the standards enunciated by the Supreme Court in [Toyota], that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and that to be substantially limited in performing a major life activity under the ADA ‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives;’” and (5) “to provide a new definition of ‘substantially limits’ to indicate that Congress intends to depart from the strict and demanding standard applied by the Supreme Court in [Toyota] and by numerous lower courts.”

If the Act passes, employer can expect an increase in the number of ADA claims filed by aggrieved employees and former employees. Moreover, employers will need to audit their personnel policies to ensure that there is nothing that conflicts with the strictures of the Act. We will report on the status of the Act in future editions of the SLF Alert. The Act may be viewed at: http://www.govtrack.us/congress/bill.xpd?bill=h110-3195.

SNIFFEN NAMED TO LEGAL ELITE, TOP 100 AND REGISTRY OF PREEMINENT LAWYERS

Firm founder, Rob Sniffen, was recently named to Florida Trend Magazine’s “Legal Elite” in Labor and Employment Law. The “Legal Elite” comprises the top 2% of lawyers practicing in various areas. Rob was also named to Florida Super Lawyers Magazine’s “Top 100” List, a list of the State’s top lawyers in all practice areas. He was also selected for inclusion in Martindale-Hubbell’s Bar Registry of Preeminent Lawyers.

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