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The ADA Amendments Act: Judicial
Decisions Relating to Testing Accommodation
Nancy Lee Jones
Legislative Attorney
June 3, 2010
Congressional Research Service
7-5700
www.crs.gov
R41280
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008

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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

Summary
The Americans with Disabilities Act (ADA) is a broad civil rights act prohibiting discrimination
against individuals with disabilities and has as its purpose “to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals with disabilities.” The
ADA was amended in 2008 by the ADA Amendments Act (ADAAA), P.L. 110-325, to expand the
definition of disability from the manner in which it had been interpreted by the Supreme Court,
an expansion which could effect whether accommodations are provided for certain tests such as
bar examinations. This report will examine the statutory change in the definition particularly as it
relates to the concept of “substantially limits,” as well as judicial decisions and commentary
relating to testing accommodation.


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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

Contents
Introduction ................................................................................................................................ 1
Statutory Language ..................................................................................................................... 1
Judicial Decisions ....................................................................................................................... 3
Pre-ADAAA Judicial Decisions ............................................................................................ 3
Post-ADAAA Judicial Decisions........................................................................................... 3
Impact on Testing........................................................................................................................ 4

Contacts
Author Contact Information ........................................................................................................ 5

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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

Introduction
The Americans with Disabilities Act (ADA)1 is a broad civil rights act prohibiting discrimination
against individuals with disabilities. As stated in the act, its purpose is “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.”2 The ADA was amended in 2008 by the ADA Amendments Act (ADAAA), P.L. 110-
325, to expand the definition of disability from the manner in which it had been interpreted by the
Supreme Court,3 an expansion which could effect whether accommodations are provided for
certain tests such as bar examinations. The Equal Employment Opportunity Commission (EEOC)
issued proposed regulations on the ADAAA definition of disability but did not directly address
the issue of testing.4 This report will examine the statutory change in the definition particularly as
it relates to the concept of “substantially limits,” as well as judicial decisions and commentary
relating to testing accommodation.
Statutory Language
The ADA Amendments Act (ADAAA) defines the term disability with respect to an individual as
“(A) a physical or mental impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment (as described in paragraph (3)).”5 Although this is essentially the same
statutory language as was in the original ADA, P.L. 110-325 contains new rules of construction
regarding the definition of disability, including, among others, that
• the definition of disability shall be construed in favor of broad coverage to the
maximum extent permitted by the terms of the act;

1 42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy Lee Jones.
2 42 U.S.C. §12101(b)(1).
3 See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516
(1999); Kirkingburg v. Albertson’s Inc., 527 U.S. 555 (1999); Toyota Motor Manufacturing v. Williams, 534 U.S. 184
(2002). For a more detailed discussion of the ADA Amendments Act see CRS Report RL34691, The ADA Amendments
Act: P.L. 110-325, by Nancy Lee Jones.
4 74 FED. REG. 48431 (September 23, 2009).
5 P.L. 110-325, §4(a), amending 42 U.S.C. §12102(3). The ADA Amendments Act does not specifically list covered
disabilities, and final regulations have not yet been promulgated. However, the EEOC proposed regulations do provide
examples of impairments that will consistently meet the definition of disability, including autism, cancer, cerebral
palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder,
post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. EEOC Proposed Regulations, to be
codified at 29 C.F.R. § 1630.2(j)(5); 74 FED. REG. 48441 (September 23, 2009). The EEOC proposed regulations also
noted some impairments that are usually not considered to be disabilities, stating the following: “[t]emporary, non-
chronic impairments of short duration with little or no residual effects (such as the common cold, seasonal or common
influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, or a broken bone that is expected to heal
completely) usually will not substantially limit a major life activity.” EEOC Proposed Regulations, to be codified at 29
C.F.R. § 1630.2(j)(8); 74 FED. REG. 48443 (September 23, 2009). An intermediate category, where an impairment may
be disabling for some individuals but not for others, was also included. This category includes learning disabilities, one
of the most common disabilities for which testing accommodations are requested. EEOC Proposed Regulations, to be
codified at 29 C.F.R. § 1630.2(j)(6); 74 FED. REG. 48442 (September 23, 2009).
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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

• the term “substantially limits” shall be interpreted consistently with the findings
and purposes of the ADA Amendments Act; and
• the determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures, except that the ameliorative effects of ordinary eyeglasses or contact
lenses shall be considered.
The findings of the ADA Amendments Act include statements indicating that the Supreme Court
decisions in Sutton and Toyota as well as lower court cases have narrowed and limited the ADA
from what was intended by Congress. P.L. 110-325 specifically states that the then current Equal
Employment Opportunity Commission (EEOC) regulations defining the term “substantially
limits” as “significantly restricted” are “inconsistent with congressional intent, by expressing too
high a standard.” The codified findings in the original ADA are also amended to delete the
finding that “43,000,000 Americans have one or more physical or mental disabilities....” This
finding was used in Sutton to support limiting the reach of the definition of disability.
The House debate contains a colloquy between Representatives Pete Stark and George Miller on
the subject of the meaning of “substantially limits” in the context of learning, reading, writing,
thinking, or speaking. The colloquy finds that an individual who has performed well academically
may still be considered an individual with a disability. Representative Stark stated the following:
Specific learning disabilities, such as dyslexia, are neurologically based impairments that
substantially limit the way these individuals perform major life activities, like reading or
learning, or the time it takes to perform such activities often referred to as the condition,
manner, or duration. This legislation will reestablish coverage for these individuals by
ensuring that the definition of this ability is broadly construed and the determination does not
consider the use of mitigating measures.6
The colloquy continued with Representative Miller indicating that the ADAAA supported the
finding in Bartlett v. New York State Board of Bar Examiners,7 that an individual should not be
penalized due to adaptive strategies that may lessen the impact of the disability.8
The EEOC’s proposed ADAAA regulations echo this colloquy, specifically stating that
An individual with a learning disability who is substantially limited in reading, learning,
thinking, or concentrating compared to most people, as indicated by the speed or ease with
which he can read, the time and effort required for him to learn, or the difficulty he
experiences in concentrating or thinking, is an individual with a disability, even if he has
achieved a high level of academic success, such as graduating from college. The
determination of whether an individual has a disability does not depend on what an
individual is able to do in spite of an impairment.9

6 154 CONG. REC. H. 8291 (daily ed. September 17, 2008).
7 Bartlett v. New York State Board of Law Examiners, 2001 U.S. Dist. LEXIS 11926 (S.D.N.Y. August 15, 2001). See
discussion infra.
8 Id. One Senator stated during Senate debate that standardized testing organizations should “not be required to
fundamentally alter key performance measurements when providing reasonable accommodations to students with
disabilities.” 154 CONG. REC. S8355 (daily ed. September 11, 2008) (Remarks of Senator Barrasso).
9 EEOC Proposed Regulations, to be codified at 29 C.F.R. § 1630.2(j)(6)(C); 74 FED. REG. 48442 (September 23,
2009.)
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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

The ADAAA also defines the term “major life activities” and adds reading, concentrating,
thinking, and communicating to the list of included activities.10 However, the ADAAA also
specifically states that
Nothing in this Act alters the provisions of section 302(b)(2)(A)(ii), specifying that
reasonable modifications in policies, practices, or procedures, including academic
requirements in postsecondary education, would fundamentally alter the nature of the goods,
services, facilities, privileges, advantages, or accommodations involved.11
Judicial Decisions
Pre-ADAAA Judicial Decisions
Prior to the enactment of the ADAAA, courts took two main approaches to plaintiffs alleging
discrimination in testing accommodations. In Price v. National Board of Medical Examiners,12 the
court found that since the students had a history of “significant scholastic achievement” they
could learn “at least as well as the average person” and, therefore, did not have a disability.13
However, the court in Bartlett v. New York State Board of Bar Examiners,14 took another approach
and, despite the plaintiff’s academic achievements which included a Ph.D. and law degree, held
that the plaintiff was substantially limited in the major life activity of reading. In the last of
several opinions in this case, the court noted that although the plaintiff used certain self
accommodations or coping strategies, these “merely help plaintiff function, but do not affect her
ability to read” and, therefore, were not relevant in a determination of whether the plaintiff has a
reading disability. The court further observed the following:
A definition of disability based on outcomes alone, particularly in the context of learning
disabilities, would prevent a court from finding a disability in the case of any individual like
Dr. Bartlett who is extremely bright and hardworking, and who uses alternative routes to
achieve academic success.15
Post-ADAAA Judicial Decisions
The ADA Amendments Act was enacted on September 25, 2008, and became effective on January
1, 2009. Generally, courts do not apply a new statute to cases already pending since “retroactivity
is not favored in the law….”16 Since many of the decisions currently being rendered by the courts
concern factual situations that occurred prior to the ADAAA’s effective date, courts most often

10 42 U.S.C. §12102.
11 42 U.S.C. §12201.
12 966 F.Supp. 419 (S.D. W. Va. 1997).
13 Id. at 427-428.
14 Bartlett v. New York State Board of Law Examiners, 2001 U.S. Dist. LEXIS 11926 (S.D.N.Y. August 15, 2001).
15 Id.
16 Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

have declined to apply the ADAAA.17 However, where the claim is for prospective relief, one
court has found the ADAAA to be applicable.
In Jenkins v. National Board of Medical Examiners18 the plaintiff, who had been diagnosed with a
reading disorder at a young age, sought additional time on the U.S. Medical Licensing
Examination. He had previously received 50% additional time on the ACT and MCAT
examinations. The Sixth Circuit held that the ADAAA did apply, reasoning that since the plaintiff
was seeking prospective relief (i.e., accommodations for an examination in the future), there was
no injustice to the defendant. Finding that the lower court had relied on the “very language from
Toyota that Congress repudiated in the ADA Amendments Act,” the case was remanded to
determine whether the plaintiff was an individual with a disability as defined by the ADAAA,
and, if so, what accommodations were required. The court of appeals did not attempt to interpret
the ADAAA stating that “[t]he fact-bound nature of the question whether Jenkins is disabled
under the revised Act counsels a remand without an appellate attempt to give more precise
definition in the abstract to the revised Congressional language.”
Impact on Testing
The paucity of judicial decisions and the relatively short period of time that has elapsed since the
enactment of the ADA AA does not allow for any definitive conclusions concerning the
ADAAA’s impact on testing accommodations. One commentator has observed that “[t]here are
still many unanswered questions about how to apply the ADAAA and what impact it will have on
licensing examinations.”19 This commentator also noted that, after the ADAAA, more individuals
would probably be determined to have a disability, and the focus may shift “from whether an
applicant has a disability within the meaning of the ADAAA to whether an applicant with a
qualifying disability is entitled to accommodations and, if so, which accommodations are
appropriate.”20 These comments were echoed by Erica Moeser, the President of the National
Conference of Bar Examiners, who indicated that she feels the ADAAA may not change testing
accommodations for bar examinations21 significantly. Ms. Moeser stated,
… the real watershed was the ADA itself. And in looking at the Amendments, while they
may move things around a little bit, they really don’t … fundamentally alter what we’re
doing in terms of testing. The question may shift from whether someone has a disability to
the appropriate accommodation to a greater extent, but I don’t know that—at least at this
point, from my own observations, as the Amendments have taken effect—that we are
looking at major changes to the way business is done.22

17 See e.g., EEOC v. Agro Distribution, LLC, 555 F.3d 462 (5th Cir. 2009); Pinegar v. Shinseki, 2010 U.S. Dist. LEXIS
22265 (M.D. Pa. March 10, 2010); Britting v. Shineski, 2010 U.S. Dist. LEXIS 10190 (M.D. Pa. Feb. 5, 2010); Taylor
v. Consolidated Products, Inc., 2009 U.S. Dist. LEXIS 53473 (E.D. Tenn. June 19, 2009); Jones v. Wal-Mart Stores,
East, L.P., 2009 U.S. Dist. LEXIS 47242 (E.D. Tenn. June 5, 2009); Geiger v. Pfizer, Inc., 2009 U.S. Dist. LEXIS
126345 (S.D. Ohio April 10, 2009).
18 2009 U.S. App. LEXIS 2660 (6th Cir. February 11, 2009).
19 Judith A. Gundersen, “The ADAAA and the Bar Exam,” 78 THE BAR EXAMINER 40, 43 (May 2009)
http://www.ncbex.org/uploads/user_docrepos/780209_Gundersen.pdf.
20 Id.
21 For information on testing accommodations for the bar examination see http://www.lsac.org/pdfs/
GuidelinesCognitive.pdf.
22 “Conference Panel: What the ADA Amendments and Higher Education Acts Mean for Law Schools,” 18 AM.U.J.
(continued...)
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The ADA Amendments Act: Judicial Decisions Relating to Testing Accommodation

As is the situation generally with the ADA, the outcome of any case under the ADAAA will often
rest on the specific fact situation presented. However, there are some unanswered questions
concerning testing. For example, the ADAAA specifically states that mitigating measures or
devices cannot be considered in determining whether an individual has a disability,23 but is silent
on whether mitigating measures may be used in determining whether to provide accommodations.
This may be relevant in situations such as where an applicant who is diabetic and uses an insulin
pump requests additional testing time, even though such time is not necessary for food or blood
sugar testing breaks.24 Guidance on this and other issues awaits final regulations and, perhaps,
judicial decisions.

Author Contact Information

Nancy Lee Jones

Legislative Attorney
njones@crs.loc.gov, 7-6976



(...continued)
GENDER SOC. POL’Y & L 13, 30 (2009).
23 42 U.S.C. §12102.
24 For a more extensive discussion of this issue see Judith A. Gundersen, “The ADAAA and the Bar Exam,” 78 THE
BAR EXAMINER 40, 43 (May 2009) http://www.ncbex.org/uploads/user_docrepos/780209_Gundersen.pdf.

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