The ADA Amendments Act (“ADAAA” or “Amendments”) was signed into law September 25, 2008, with the intention of “restor[ing] the intent and protections of the Americans with Disabilities Act.” The Amendments became effective January 1, 2009, and greatly expand the scope of the ADA. The ADA outlaws discrimination, including employment discrimination, on the basis of one’s “disability,” as that term is statutorily defined. Congress believed the ADA had been narrowly interpreted by the courts, and sought in the Amendments to expand the statute’s coverage.
In the wake of the employee-friendly Amendments, plaintiffs have argued – and may be expected to argue – that they should apply in analyzing employment disputes that arose before their effective date. In the absence of express congressional direction that the ADAAA apply retroactively, and given that the Amendments could impose liability where none existed before, applicable Supreme Court precedent teaches that the Amendments should apply retroactively.
1. Retroactivity Arguments After the Civil Rights Act of 1991.
Employment discrimination plaintiffs raised similar retroactivity arguments following the Civil Rights Act of 1991, which amended Title VII of the Civil Rights Act of 1964. The Supreme Court, in a pair of decisions, concluded that the 1991 Act should not apply retroactively.
a. Landgraf v. USI Film Products
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the plaintiff claimed she was inappropriately physically harassed and constructively discharged from her employment. Following a bench trial, the court concluded that the plaintiff had been inappropriately physically harassed, but was not constructively discharged. The court found under then existing law that the plaintiff could not recover. During the pendency of Landgraf’s appeal, Congress enacted the 1991 Act, which expanded Title VII plaintiffs’ right to recover damages. Landgraf sought retroactive application of the 1991 Act.
The Supreme Court rejected Landgraf’s attempt and held there is a presumption against retroactive statutory application. The Court noted that “elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly,” and that “[t]he presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact.” Id. at 265, 270.
Given these notions of fair notice and reliance, the Court held that retroactivity analysis depends first on whether Congress has clearly expressed an intention that the statute apply retroactively. If so, then Congress’ intention will control. Such a rule places the burden on Congress – where it belongs – to affirmatively consider the potential unfairness of retroactive application. Id. at 272-73.
If Congress does not clearly state an intent to apply retroactively, then a reviewing court must determine whether the statute would have “retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280. If so, then the presumption against retroactive application applies. Id.
In Landgraf, the Court found that Congress did not expressly provide for retroactive application of the 1991 Act. Therefore, it was presumptively prospective only. Landgraf could not overcome the presumption.
b. Rivers v. Roadway Express, Inc.
Even more instructive in the ADAAA retroactivity context is Landgraf’s companion case, Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994). In that case, two African-American workers sued their former employer, claiming racially discriminatory termination in violation of 42 U.S.C. 1981. The court dismissed the plaintiffs’ 1981 claims because Supreme Court precedent held that Section 1981 as then worded did not outlaw discriminatory terminations.
While the plaintiffs’ appeal was pending, Congress enacted the 1991 Act, which amended Section 1981 to prohibit discriminatory terminations. The plaintiffs argued for retroactive application. The Supreme Court stated that the presumption against retroactive application applied in Rivers with even greater clarity than in Landgraf because, like the ADAAA provisions, the amendment to Section 1981 “enlarged the category of conduct that is subject to § 1981 liability.” In other words, the amendment had “the effect not only of increasing liability but also of establishing a new standard of conduct . . . [and] new legal obligations . . . .” Rivers, at 303.
Even more important from an ADAAA perspective is the fact that the Rivers petitioners argued for retroactive application based on Congress’ intent in amending Section 1981 to restore its previous jurisprudence and return rights to plaintiffs that existed before the Supreme Court allegedly whittled them away. They claimed that Congress’ “restorative” intent meant the Section 1981 amendment should be retroactively applied.
The Court refused to find a retroactive intent solely from the fact that Congress intended to override the Court’s previous decisions. Even assuming Congress disapproved of the applicable decisions and intended to override them, there was no express statement that Congress intended the amendment to apply retroactively. Accordingly, the “prospective only” presumption arose, and the plaintiffs could not overcome that presumption.
Rivers is highly instructive in the ADAAA retroactivity analysis. There is no question that Congress intended the ADAAA to “restore” Congress’ original ADA intent. Congress expressly stated so in the text of the Amendments. Under Rivers, this intent to reverse course is insufficient for retroactive application. There must be a clear expression of congressional intent that the statute apply retroactively. Because there is no such clear expression in the text of the ADAAA, it is subject to the presumption that it does not apply retroactively. (Contrast the ADAAA with the Lilly Ledbetter Fair Pay Act of 2009, which President Obama signed January 29, 2009, and which expressly provides for retroactive application to all cases pending on or after May 28, 2007.)
2. Application of 1991 Act Decisions to ADAAA Retroactivity.
Several courts have, since the effective date of the ADAAA, considered the question whether its provisions should apply retroactively. In EEOC v. Argo Distribution LLC, No. 07-60477 (5th Cir. Jan. 15, 2009), the Fifth Circuit refused to apply the Amendments retroactively and found that, under a pre-Amendments analysis, the complainant was not ADA-disabled. In Argo, Henry Velez suffered from a condition which precluded his ability to perspire. He claimed he was substantially limited in the major life activity of regulating body temperature. The court assumed for purposes of the decision that “regulating body temperature” was a major life activity, but held that the EEOC failed to present evidence that Velez was “substantially limited” in that activity. Accordingly, he was not disabled for ADA purposes.
In reaching that conclusion, the court stated that it was required to examine the impact of mitigating measures on Velez’s life, such as drinking cold liquids, sitting in front of a fan and spraying himself with water. These mitigating measures rendered his medical condition not substantially limiting. Had the court applied the Amendments retroactively, Velez likely would have been disabled under the ADA, because the Amendments prohibit consideration of mitigating measures.
A court in the Western District of Kentucky reached a similar conclusion in Rudolph v. U.S. Enrichment Corp., No.5:08-cv-46 (Jan. 15, 2009). In Rudolph, the court considered whether to apply retroactively the Amendments’ expansion of ADA coverage for individuals “regarded as” disabled. The Amendments provide that one is “regarded as” disabled if he is subjected to adverse employment action because of an actual or perceived impairment “whether or not the impairment limits or is perceived to limit a major life activity.” Prior to the Amendments, one was “regarded as” disabled only if the perceived impairment was one that substantially limited a major life activity.
Rudolph argued that she was “regarded as” disabled under the Amendments because her employer perceived that she was impaired in her ability to perform the major life activities of “walking and climbing stairs.” She claimed that under the Amendments, she was not required to prove that her employer regarded her as “substantially limited” in the asserted major life activities. The court correctly analyzed the retroactivity question and refused to apply the Amendments retroactively because they “would potentially increase [the employer’s] liability for past conduct.” The court held that Rudolph was not covered by the ADA because she failed to present evidence that she was regarded as substantially limited in a major life activity.
See also Schmitz v. Louisiana, No. 07-891 (M.D. La. Jan. 27, 2009) (refusing to retroactively apply ADAAA to Rehabilitation Act case); Kirkeberg v. Canadian Pacific Railway, No. 07-4621 (D. Minn. Jan. 26, 2009) (determining that retroactive application of ADAAA was not warranted).
The courts which have reviewed the issue have correctly concluded that the Amendments do not apply retroactively. This is the right result. To permit retroactive application of the Amendments could mean imposition of liability on an employer for discriminating against an employee who was not ADA-covered at the time of the challenged employment action. Fundamental notions of fairness dictate that an employer should not be exposed to liability for conduct that was not illegal at the time it occurred.
Robert J. Toy
Post & Schell, P.C.
Philadelphia, Pennsylvania
rtoy@postschell.com
