As I was reviewing the EEOC’s final regulations to the Americans with Disabilities Amendment Act of 2008 (ADAAA), I was impressed with one of the final paragraphs of the regulations:

“The Amendments Act modified title I’s nondiscrimination provision to replace the prohibition on discrimination ‘‘against a qualified individual with a disability because of the disability of such individual’’ with a prohibition on discrimination ‘‘against a qualified individual on the basis of disability.’’ As the legislative history of the ADAAA explains: ‘‘[T]he bill modifies the ADA to conform to the structure of Title VII and other civil rights laws by requiring an individual to demonstrate discrimination ‘on the basis of disability’ rather than discrimination ‘against an individual with a disability’ because of the individual’s disability. We hope this will be an important signal to both lawyers and courts to spend less time and energy on the minutia of an individual’s impairment, and more time and energy on the merits of the case—including whether discrimination occurred because of the disability, whether an individual was qualified for a job or eligible for a service, and whether a reasonable accommodation or modification was called for under the law.’’Joint Hoyer-Sensenbrenner Statement at 4; see also 2008 House Judiciary Report at 21(‘‘This change harmonizes the ADA with other civil rights laws by focusing on whether a person who has been discriminated against has proven that the discrimination was based on a personal characteristic (disability), not on whether he or she has proven that the characteristic exists”).”

      It will certainly be interesting to see if the federal courts can refrain from engaging in the extensive analysis given the prior version of the ADA and their dogged refusal to allow almost every plaintiff to meet the definition of disability.  This attitude made the ADA almost impossible to use and was the poster child for an “enigma wrapped in a mystery inside a puzzle“.  The former ADA was so strictly interpreted by the federal courts that the term “Catch-22” was given new life in their interpretations of meeting the definition of disability.  It is refreshing to read the final regulations to the ADAAA, as the EEOC tries to really nail down any hope of the federal courts finding a loophole in the ADAAA and the regulations.  The battle will now begin as the cases under the new law start through the courts.