Transcript ADA AMENDMENTS ACT OF 2008 (ADAAA)

ADA AMENDMENTS
ACT OF 2008 (ADAAA)
Apryl M. DeLange
Hopkins & Huebner, P.C.
2700 Grand Avenue, Suite 111
Des Moines, IA 50312
Telephone: (515) 244-0111
Fax: (515) 244-8935
[email protected]
ADA Amendments Act of
2008 (ADAAA)
 Effective on January 1, 2009
 Broadens the definition of “disability” by:
 (1) amending the list of activities that are deemed
to constitute “major life activities”,
 (2) redefining the meaning of the term
“substantially limits”, and
 (3) amending the “regarded as” prong of the
disability definition.
ADA GENERALLY (42 U.S.C.
§ 12101 et seq.)
 Applies to all employers with 15 or more
employees and to all governmental entities
(regardless of size)
 Illegal to discriminate against a “qualified
individual” on the basis of “disability” in regard
to:
 job application procedures,
 hiring, advancement, job training or discharge of
employees,
 employee compensation, and
 other terms, conditions, and privileges of
employment.
ADA GENERALLY (42 U.S.C.
§ 12101 et seq.)
 A “qualified individual” is an individual who,
with or without “reasonable accommodation”,
can perform the essential functions of the
employment position
 A “disability” is (A) a physical or mental
impairment that “substantially limits” one or
more of the “major life activities” of such an
individual, (B) a record of such an impairment,
or (C) being “regarded as” having such an
impairment. (42 U.S.C. 12102).
ADA GENERALLY (42 U.S.C.
§ 12101 et seq.)
 “Reasonable accommodation” includes making
facilities accessible, job restructuring,
reassignment, modification of equipment, and
acquisition of technology.
 Employers are not required to make
reasonable accommodations that would
impose an “undue hardship” – that is, an
accommodation requiring significant difficulty or
expense.
ADAAA
(Pub. L. No. 110-325, 122 Stat. 3553,
as codified in 42 U.S.C. § 12101 et
seq.)
 The ADAAA
broadens the
definition of disability
by redefining and
expanding the
meanings of “major
life activities,”
“substantially limits,”
and “regarded as.”
Major Life Activities

Pre ADAAA
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ADA did not enumerate specific activities
that qualified as major life activities.
EEOC regulations: classified caring for
oneself, performing, manual tasks,
walking, seeing, hearing, speaking,
breathing, learning, and working as major
life activities.
Post ADAAA
The ADAAA provides
that the following
non-inclusive list of
activities constitute
“major life activities”
within the meaning of
the term “disability”
as defined in the
ADA:
1. caring for oneself,
2. performing manual tasks,
3. seeing,
4. hearing,
5. eating,
6. sleeping,
7. walking,
8. standing,
9. lifting,
10. bending,
11. speaking,
12. breathing,
13. learning,
14. concentrating,
15. thinking,
16. communicating, and
17. working.
New classification of “major
life activities” is “major
bodily function”
Including, but not
limited to:
 1. functions of the
immune system,
 2. normal cell
growth,
 3. digestive,
 4. bowel,
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5. bladder,
6. neurological,
7. brain,
8. respiratory,
9. circulatory,
10. endocrine, and
11. reproductive
functions.
Substantially Limits

Pre ADAAA
Prior to the ADAAA, courts defined
“substantially limits” as “preventing” or
“severely restricting” a major life
activity.
Post ADAAA
 Congress expressly rejected the Supreme
Court’s “prevents or severely restricts”
interpretation of “substantially limits.”
 ADAAA simply states that the term
“substantially limits” shall be interpreted
consistently with the findings and purposes of
the act, and shall be construed in favor of
broad coverage of individuals under this act.
 No specific test
Mitigating Measures –
No more…
 ADAAA provides that the determination of
whether impairment “substantially limits” a
“major life activity” shall be made without
regard to corrective effects of mitigating
measures.
 So – you look at the person without regard to
medicine they may take or medical devices
they may use
 Exception – eye glasses and contacts can be
taken into account
Now - only impact one
major life activity…
 ADAAA clarifies that an impairment that
substantially limits one major life activity need
not limit other major life activities in order to be
considered a disability.
 Changes prior precedent pertaining to work.
Pre-ADAAA if the major life activity was
working, there needed to be a showing that
there was also another substantial limitation in
some other major life activity.
“Regarded as”
Pre ADAAA
 An individual satisfied the “regarded as”
prong of the disability definition by
establishing that:
 he or she had been subjected to an
action prohibited under the ADA
because of an actual or perceived
physical or mental impairment and
 by showing that he or she did not have
such an impairment that substantially
limited a major life activity.
Post ADAAA
 An individual meets the “regarded as”
prong of the disability definition by
establishing that
 he or she has been subjected to an action
prohibited under the ADA because of an
actual or perceived physical or mental
impairment regardless of whether or not the
impairment actually limits or is perceived to
limit a major live activity
Perceived Disabilities ADAAA
 Employers do not have to provide
reasonable accommodations or
modifications to individuals who are
“regarded as” disabled
Minor Impairments
 ADAAA provides that “transitory and minor”
impairments (i.e., impairments with actual or
expected duration of 6 months or less)
continue to be excluded from the “regarded
as” coverage under the ADA
LOOKING AHEAD
 The ADAAA does not include an
exhaustive list of activities that are
considered major life activities.
 What constitutes a major life activity will
continue to be litigated.
 “Substantially limits” and “regarded as”
have been broadened.
 The application of this will be developed
through case law.
EEOC
 The ADAAA includes an express
mandate to the EEOC to issue binding
regulations and other interpretive
guidance on the ADAAA
 Regulations will be forthcoming in 2009.
New Litigation
 Defense of ADA cases:
 Will move away from defending on the
basis that an employee is not
disabled, to whether a reasonable
accommodation was made and
whether proximate cause exists
between the adverse action and
disability status