Transcript Americans with Disabilities Act Restoration Act

The ADA Amendments Act of
2008
Sharon Rennert
Office of Legal Counsel
EEOC
ADA Amendments Act of 2008
• Went into effect on January 1, 2009
• Based on Supreme Court precedent,
statute not retroactive
• All provisions of the Amendments Act
apply to the Rehabilitation Act
• Requires EEOC to draft regulations
consistent with the Amendments Act
Why Did Congress Amend the
ADA? (Part 1)
• Congress intended the ADA definition of
disability to be construed broadly but
courts were finding too many people
outside the ADA’s protections
• The ADA’s definition of “disability” was
based on Section 504 of the Rehabilitation
Act of 1973, which courts pre-ADA
construed broadly, but post-ADA
construed narrowly
Why Did Congress Amend the
ADA? (Part 2)
• The Supreme Court’s decisions in the
Sutton trilogy (mitigating measures) and in
Toyota Motor Mfg., KY v. Williams (severe
restriction required) construed the term
“disability” too narrowly
• Congress found that the EEOC’s current
regulation, defining “substantially limits” as
“significantly restricted,” sets too high a
standard and thus was inconsistent with
Congressional intent
Why Did Congress Amend the
ADA (Part 3)
• The Supreme Court’s decision in Toyota
also incorrectly required that “substantial
limitation” be a “demanding standard”
Definition of “Disability”
• Basic 3-part definition remains the same:
• A physical or mental impairment that
substantially limits a major life activity;
• A record of such an impairment;
• Being regarded as having such an
impairment
How Definition of “Disability”
Changes (Part 1)
• Provides illustrative list of major life
activities that includes for the first time
“major bodily functions”
• Specifically rejects high standards used by
EEOC and Supreme Court to define a
“substantial limitation”
• Positive effects of mitigating measures
(other than ordinary eyeglasses or contact
lenses) cannot be considered in
determining “disability”
How Definition of
“Disability” Changes (Part 2)
• Impairment can be a disability even if
episodic or in remission
• “Regarded as” Definition Expanded
• Remember: Goal of all of these
changes is to broaden definition and
make it much easier/quicker to find
disability without a demanding analysis
Major Life Activities
• Contains most of the major life activities
that EEOC has recognized
• Contains some activities that EEOC has
not specifically recognized, such as
bending, reading, and communicating
• Major bodily functions include functions of
the immune system, normal cell growth,
digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine,
and reproductive functions
• List of major life activities is not exhaustive
Substantially Limits
• Congress clear that EEOC and Supreme
Court standards too high
• Congress not clear on what standard
should be applied
• Legislative history still focuses on
comparing the condition, manner, and
duration in performing a major life activity
as compared to most people in the general
population
Mitigating Measures
• medication, medical supplies, equipment, or
appliances, low-vision devices, prosthetics
(including limbs and devices), hearing aids and
cochlear implants or other implantable hearing
devices, mobility devices, oxygen therapy
equipment and supplies
• use of assistive technology
• reasonable accommodations or auxiliary aids or
services
• learned behavioral or adaptive neurological
modifications (monocular vision, learning
disabilities).
“Ordinary Eyeglasses or Contact
Lenses”
• “Shall” take these into account in
determining “disability”
• Definition: “lenses that are intended to
fully correct visual acuity or eliminate
refractive error”
• Distinguished from the mitigating
measure of “low vision devices” which
are defined as “devices that magnify,
enhance, or otherwise augment a visual
image”
Impairments that are
Episodic or In Remission
• Will be disabilities if substantially limit a
major life activity when active
• Episodic: impairments that may not affect
a person 24/7 but which periodically flare
up: epilepsy, mental illnesses or
disorders, multiple sclerosis
• In Remission: Cancers
“Record of” a
Disability
• 2nd definition
• All of the changes reviewed for 1st
definition (e.g., disregarding ameliorative
effects of mitigating measures) would be
applied to a “record of” situation
• Probably much more rare to need this
definition for coverage given expansion of
1st and 3rd definitions
“Regarded As” Disabled
• Covers anyone subjected to an action
“prohibited by this Act” because of an actual or
perceived physical or mental impairment
• No requirement that employer perceive
impairment to be limiting
• “Regarded as” would exclude impairments that
are transitory (six months or less) and minor
• Individuals “regarded as” disabled not entitled to
reasonable accommodation
“Regarded as” Disabled
• If employer makes employment decision
(e.g., hiring, demotion, promotion,
discipline, annual evaluation,
compensation, termination) based on
individual’s actual or perceived
impairment, employer has regarded
individual as having a disability and must
defend its actions
Other Provisions
• Employers using uncorrected vision
standards as a qualification standard for
certain jobs must show that they are jobrelated and consistent with business
necessity
• In the general prohibition of discrimination,
the phrase “discriminate on the basis of
a disability” replaces “discriminate
against a qualified individual with a
disability because of the disability of such
individual”
Watch EEOC Website
• Summary of the ADA Amendments
Act
• Watch for announcement about
proposed regulation
• Watch for changes to EEOC
publications affected by the ADA
Amendments Act
• www.eeoc.gov
Helpful Documents
• Q&A on the ADA Amendments Act
published by the Dept. of Labor
www.dol.gov/esa/ofccp (Highlights)
• Summary of the ADA Amendments Act
published by the Job Accommodation
Network
www.jan.wvu.edu/bulletins/adaaa1.htm
Sharon Rennert
• 202-663-4676
• [email protected]