Dr Malcolm Abel

The 2008 Amendments to the Americans with Disabilities Act

To be published in the Journal of Legal Studies in Business
Coauthor with D Burke


Congress concluded  in 1990 that "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society."  As a result, it passed the Americans with Disabilities Act, heralded as comprehensive reform measure designed to champion the rights of disabled Americans, and to insure a more level playing field.   However, at least with respect to its employment provisions, it soon became clear that plaintiffs had a difficult time succeeding in lawsuits against their employers, with less than ten percent of plaintiffs prevailing in litigation.   Courts interpreted key terms of the statute narrowly,  frustrating its goals of integration and equality. This paper first will discuss the provisions of the 1990 legislation and the Supreme Court decisions that narrowed its coverage. It then will outline the provisions of legislation Congress passed in 2008 to reverse that trend, and to restore the rights envisioned in 1990 for disabled workers.