Transcript Recently Signed ADA Amendments Act

ADA Amendments Act
How Does It Affect You?
William Barrett & Heath Galloway
Americans with
Disabilities Act of 1990
(ADA)
Overview
 Who is Covered?
 All private sector employers and most
governmental employees engaged in any activity
“affecting commerce” with 15 or more
employees
 Qualified Person
 A job applicant or employee with a “disability
 Who can perform the “essential functions” of the
current job (or a suitable alternative)
 With or without “reasonable accommodation”
ADA
 Defining Disability
 Physical or mental impairment that
“substantially limits” one or more “major life
activities”
 A record of such impairment; or
 Being regarded as having such an
impairment
Substantial Limitation
 To constitute a disability, the
limitation of a major life activity
must be substantial
 An individual with a significant impairment
will not be protected by the ADA (and the
employer is not necessarily obligated to
follow the act) unless the impairment limits
one of the individual’s major life activities in
a substantial way
Essential Functions of the Job
 A particular job duty is an essential
function if the job exists, in
significant part, to perform that
function, and if removing the
function would fundamentally alter
the nature of the job
Reasonable Accommodation
 Making existing facilities readily accessible to
and usable by persons with disabilities
 Job restructuring, modifying work schedules,
reassignment to a vacant positions
 Acquiring or modifying equipment or devices,
training material, or policies
 Employer is required to make reasonable
accommodation to known disability of
qualified applicant or employee if it would not
impose an “undue hardship”
ADA Amendments Act
(ADAAA)
 Background:
 Amends the ADA
 Effective January 1, 2009
 Overturns several employer-friendly
Supreme Court decisions
Key Provisions of ADAAA
 Provide a broader protected class by:
 Prohibiting consideration of mitigating factors
 Expanding definition of key terms within
“disability” definition
 Including non-exhaustive list of covered major
life activities; and
 Overturning controversial Supreme Court
decisions that narrowed scope of ADA
protection
Prohibit Inclusion of Mitigating
Measures
 Sutton v. United Airlines, 527 U.S. 184
(1999)
 Identical twins with visual disability that
could be corrected were denied pilot
positions
 Sutton not disabled due to prescribed
medication (corrective eye measures)
 Under Sutton, employers could consider
mitigating measures in determining disability
Prohibit Inclusion of Mitigating
Measures
 Congress rejects Sutton requirements that
whether an impairment substantially limits a
major life activity is to be determined with
reference to the ameliorative effects of
mitigating measures
 Under the ADAAA, employers cannot factor in
mitigating measures (medication, prosthesis or
hearing aid) when determining disability
Redefining Disability
 Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002)
 Williams claimed disability due to her Carpal
Tunnel Syndrome
 Court denied claim; she must show “an
impairment that prevents or severely restricts
[her] from doing activities that are of central
purpose to most people’s daily lives,” regardless
of whether the unaccommodated impairment
prevents her from performing essential job
functions
Redefining Disability

ADAA rejects Toyota standard that the terms
“substantially” and “major” need to be interpreted
strictly to create a demanding standard for
qualifying as disabled
 Under the ADAAA the definition of disability “shall
be construed in favor of broad coverage under the
Act, to the maximum extent permitted by the Act”
 An impairment that is “episodic or in remission” is a
disability “if it would substantially limit a major life
activity when active”
“Substantially Limits”
 Congress rejects current EEOC ADA
regulation that defines term
“substantially limits” as “significantly
restricts”
 EEOC directed to revise its regulation to
define “substantially limits” consistent
with finding and purpose of ADAAA
 Requires a lower degree of functional
limitation than the previous Standard
“Substantially Limits”
 It is to be construed “Broadly, in favor of
Expansive Coverage
 Still an individual Assessment in each
case
 Determination of limitation is made without
considering mitigating measures such as
medication or hearing aids
 Only one exception – “ordinary”
eyeglasses or contact lenses
New Definition of Major Life
Activities
 Major life activities defined to include
caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending,
speaking, breathing, learning, reading,
concentrating, thinking, communicating,
and working
New Definition of Major Life
Activities
 Definition also includes operation of
major bodily functions, including but not
limited to immune system; cell growth;
digestive, bladder, and bowel functions;
neurological and brain functions;
respiratory and circulatory functions;
endocrine functions; reproductive
functions
“Regarded as Prong”
 Under ADAAA- individual is “regarded as”
disabled if subjected to discrimination
because of an actual or perceived impairment
“whether or not the impairment limits or is
perceived to limit a major life activity”
 Under ADAAA- “regarded as” does not apply
to impairments that are transitory and minor
(defined as impairment with actual or
expected duration of 6 months or less)
The ADAAA In Action
 Formerly there was a list of impairments
that would “consistently,” “sometimes,”
or “usually not” be disabilities
» Final regulations provide nine (9) rules
of construction to guide analysis
 By applying the nine (9) rules, some
impairments will virtually always be
disabilities
 Examples: epilepsy, diabetes, cancer,
HIV, Bipolar disorder
“Nine (9) Rules of Construction”
 “Substantially Limits” is construed broadly
 An impairment is a disability if it
substantially limits the ability of an
individual to perform a major life activity
compared to most people. Need not
prevent or significantly restrict the activity
 Primary focus in cases is the question of
covered employees meeting their
obligations and whether discrimination has
occurred. So “substantial limitation”
should not require extensive analysis
“Nine (9) Rules of Construction”
 Determination of “substantial limitation” is
an individual assessment
 Comparison to “most people” usually will
not require scientific, medical, or statistical
analysis. Such evidence is not prohibited,
however
 Determination of “substantial limitation”
made without considering mitigating
measures
“Nine (9) Rules of Construction”
 Impairments that are episodic (migraines)
or in remission (cancer) can be
substantially limiting as they would be
when active
 Individual need only be substantially
limited in one major life activity to be
disabled
 No minimum duration. Impairments lasting
fewer than six (6) months may be
substantially limiting
Caselaw Examples
 Gibbs v. ADS Alliance Data Systems, Inc.
 Retail credit card customer service,
collections
 Plaintiff or sales/service rep
 Carpal Tunnel Syndrome – injury
sustained at her second job at CVS
Pharmacy and due to repetitive work at
ADS
 Medical release for full duty after 6
months
 Plaintiff’s burdens met
Caselaw Examples
 Sibilla v. Follett Corp.
 Plaintiffs (two sisters) alleged that Follett (a
bookstore chain) “regarded” them as disabled
because they were very overweight
 Case dismissed before trial (summary
judgment)
 Evidence was insufficient to show Follett
“regarded” the sisters as overweight/obsese,
or that Follett “regarded” being overweight as
a disability
 Case note: ADAAA “regarded as” prong no
longer requires a plaintiff to prove their
impairment limits – or is perceived to limit – a
major life activity
Caselaw Examples
 Moloney v. Home Depot USA, Inc.
 Plaintiff alleged he was terminated from his
sales associate position due to his mental
disability (low IQ, educationally impaired)
 Case turned on a determination of whether his
supervisors were aware of his disability
 Store and its managers were informed of his
impairment during hiring. Direct Supervisors
knew he lived in a group home, recognized he
was “slow,” and had trouble focusing
 Termination after 10 years of generally
positive reviews for “poor customer service”
was therefore a question for the jury to decide
Impact of ADAAA
 Disability threshold will be much
lower
 Cases will focus on:
 Discrimination analysis
 Has employer reasonably
accommodated individual
Impact of ADAAA on
Employers
 Harder for businesses to defend
claims due to increased protected
class
 Expect to see dramatic increase in
accommodation requests and
litigation
 Increased exposure to significant
damages
Best Practices
 Given the ADAAA, many Americans will meet the
definition of disability & qualify for the Act’s
protection
 Employers need to reevaluate current policies and
hiring practices
 Companies should train HR professionals,
managers, supervisors, etc., on the importance of
the ADAAA
 Management must exercise greater care when
making personnel decisions for employees with
health impairments or medical conditions
Questions?
For Further Information
Contact
William Barrett at
[email protected]
or
Heath Galloway at
[email protected]