The ADAAA vs. the Texas Labor Code- “The Gap Period”

The Americans with Disabilities Act  Amendment Act  (ADAAA) and the Texas Labor Code provision prohibiting disability discrimination amendments to conform to the ADAAA created a dilemma for claimants.  The dilemma arises in the fact that the effective date for the amendments of the ADAAA is January 1, 2009, while the effective date for the amendments to the Texas Labor Code is September 1, 2009; thus creating a “gap” in the coverage.  Normally, a plaintiff would like to file in state court under the disability protection provisions of the state law in order to stay out of federal court .  The ADAAA corrected many of the problems of the ADA for a plaintiff qualifying as a disabled person under the law.  The federal courts, including the U.S. Supreme Court, have for years interpreted the ADA in a very narrow manner thereby construing the term disabled to exclude as many people as possible from the protection of the law.  Since, the state courts normally follow the federal courts many of the states did the same.  However, Congress amended the ADA in the ADAAA by ordering the courts to construe the term disabled broadly so that more people are included.  This provision took effect on January 1, 2009 for all cases in which the facts arose on or after that date.  The federal courts even gave one last parting shot at the law and Congress by construing that the liberal provisions of the ADAAA were not applicable to cases arising before January 1, 2009.  To make matters worse for persons needing the protection of the law, the State of Texas only made the state disability law effective for facts arising after September 1, 2009.  This eight month gap required attorneys to decide whether to invoke the ADAAA when the facts arose between January 1, 2009 and September 1, 2009 in order to take advantage of the more liberal definition of disability or stay under the Texas state law with the more strict provisions for 8 more months.  I had a case which arose in this gap period and filed it in state court under the state law and the ADAAA so we could use the more liberal provisions.  However, when you sue under the federal law, the defendant can then remove the case to federal court, which is what they did in my case.  It was a gamble that didn’t pay off except that I will be able to use the more liberal standard of disability but it will be construed by the federal court, which can sometimes be a more difficult venue for these cases even under the new law.