Pleading Disability After the ADAAA

Five years ago, Congress passed the ADA Amendments Act, and amended the definition of disability to reinstate the ADA’s broad scope of coverage, which had been unduly narrowed by the Supreme Court and lower courts for nearly twenty years. Three years ago, the EEOC revised its regulations to clarify that broad scope of coverage. Since then, courts have gone to work interpreting this new scope of coverage. The preliminary results are good, but they could be better.

While the ADAAA made a host of important changes to the ADA’s definition of disability, employee-side lawyers need to do a better job taking advantage of these changes. This Article serves as a roadmap for pleading disability under the ADA, as amended. It explains the law’s core provisions by highlighting important information from the ADAAA’s statutory text, EEOC final regulations & guidance, and case precedent. It also summarizes findings from an empirical review of how disability has been plead under the ADA in complaints filed in the 2nd, 5th, and 9th Circuits.

Finally, this Article offers tips to plaintiffs and their attorneys on how to properly plead "disability" based on the observed challenges and missed opportunities observed in the ADA complaints that were reviewed in this study.