Transcript Preventing ADA Employment Discrimination

Is Anyone Not Disabled?
Presented by: Jeanne M. Kincaid
Copyright 2011 Drummond Woodsum. All rights expressly reserved.
CAVEAT!
 This presentation addresses legal
requirements and analysis of federal
disability laws
 Your state (and perhaps local)
government may have laws/rules that
more broadly protect the rights of
individuals with disabilities
2
The ADAAA
 Effective January 1, 2009, Congress
significantly expanded both Section
504 of the Rehabilitation Act and the
ADA
 The Equal Employment Opportunity
Commission issued final regulations
effective May 24, 2011 to reflect these
changes in the employment context
 29 C.F.R. Part 1630
3
What Congress Did Not Do
 With limited exceptions, Congress did
not alter any of the other ADA
provisions governing ADA provisions
such as:
 Essential functions
 Reasonable accommodations
 Qualification requirements of
employment and student participation
4
Individual With a Disability
Persons who:
 Have a physical or mental impairment
which substantially limits a major life
activity
 Have a record of such an impairment
which substantially limits a major life
activity
 Are regarded as having a physical or
mental impairment
5
Regarded As Disabled
 No requirement that the impairment
substantially limits a major life
activity
 So long as it lasts or is expected to last
more than six months and is not
transitory and minor
 The myth/stereotype approach is
eliminated
 But to bring a claim under “regarded
as” it must be a “prohibited” action
6
Three Elements
 Impairment
 Major life activity
 Substantial limitation
7
The Impairment Prong
 Is assessed by documentation
 Provided by the employee/student
 Purpose:
 To determine disability status
 To determine appropriate
accommodations
 Caveat: Do not demand more than is
needed
8
Remember
 Not all performance issues are
impairment based
9
The Major Life Activities Prong
 Caring for oneself
 Performing manual
tasks
 Seeing
 Hearing
 Eating
 Sleeping
 Walking
 Standing
 Lifting
 Bending









Speaking
Breathing
Learning
Reading
Concentrating
Thinking
Communicating
Working
The operation of a
major bodily function
10
The EEOC Expansion
 Sitting
 Reaching
 Interacting with others
11
The List Is Not Exhaustive
 The key word here is MAJOR
12
The Substantially Limits Prong
 Either unable to perform, or
 Substantially limited in the condition,
manner or duration of performing the
major life activity in comparison to
most people in the general population
 EEOC regulation
13
Caution
 The EEOC attempted to tackle
“learning disabilities” which are by
definition measured against one’s
potential rather than others
 The EEOC kept the “most people”
standard but reinforced that
mitigating measures must be
disregarded in the
assessment/analysis
14
What It Is Not
 An institution may not require
evidence that the condition
prevents, severely or significantly
restricts a major life activity
 Our view:
 If the limitation’s effect on a major life
activity is slight, mild or moderate, it is
not enough
 But you be the judge
15
But wait . . .
 An institution may not consider the
positive effects of mitigating
measures, such as medication,
hearing aids “learned behavioral or
adaptive neurological modifications”,
medical equipment, reasonable
accommodations or other
interventions, except for the use of
ordinary eyeglasses or contact lenses.
16
EEOC Expansion of Mitigating
Measures
 Psychotherapy
 Physical therapy
 Behavioral therapy
 And again, the list is not exhaustive
17
Mitigating Measures Refused?
 According to the EEOC, an employer
may not consider the effects of an
employee’s refusal to use mitigating
measures in determining disability
status
 Example: if an employee refuses to
take prescribed medication
 But may consider in the “qualified” or
“direct threat” analysis
18
And Just What Are Eyeglasses?
 The EEOC rejected the Wal-Mart
defense
 Do not consider where they were
bought or how they look
 Defined: “lenses that are intended to
fully correct visual acuity or to eliminate
refractive error.”
19
The Mitigating Measures Trap
 Remember, positive mitigating
measures should not be considered
on the question of disability status
 However, mitigating measures can
(and arguably should/must) be
considered at the accommodation
stage
20
Intermittent or in Remission
 Intermittent conditions or conditions
in remission qualify as disabilities if
substantially limiting in their active
state
 Rather standard-less
21
Temporary Conditions
 Very confusing area
 The EEOC refused to adopt a six
month durational standard
 Pregnancy?
 If pregnancy-related impairment, could
be
22
23
Result
 It should be relatively easy, with
proper documentation, for an
employee/student to establish that
s/he has a disability
24
Kincaid Tip
 If an institution is going to deny that
the individual is disabled – hesitate –
and be able to articulate for
yourselves a fairly clear rationale
25
Most Battles
 Should be fought on the
accommodation front
 Are any accommodations necessary and
reasonable to provide equal access?
26
Accommodations & 3 Standards
 “Actually” disabled
 May or may not require accommodation
 “Record of” disabled
 May or may not require accommodation
 Lone EEOC example cited: leave/schedule
change for follow up
 OCR has historically said no accommodation
 “Regarded as” disabled
 No right to accommodation
27
28