Transcript Fall Conference Presentation

ADA Employment Basics and the ADAAA
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Graham L. Sisson, Jr.
Executive Director
General Counsel
Governor’s Office on
Disability
• Deputy General
Counsel
• Dept. of Rehabilitation
Services
• State ADA
Coordinator
• Adjunct Professor
Contact Information
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800-205-9986 ADA Hotline
205-290-4540 Bham Office
334-293-7189 Mtgy Office
888-879-3582 GOOD
• [email protected]
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• [email protected]
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• All information provided is non-binding
• Ultra-Reader’s Digest Version
• Awareness of the rights/responsibilities of the
employer and employees with disabilities
• Disability Awareness
• ADAAA: What has changed?
– Definition of disability
– New EEOC Regs
– New DOJ Title II and III Regulations
• Service Animal definition
My Personal Experience
• Injured in 1982 motor vehicle collision with drunk
driver
• Paralyzed from waist down and suffered a closed
head injury
• Attended college and law school using a wheelchair
• Suffered some employment discriminationunderstand employer and employee perspectives.
• Have experienced public perception of PWD
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5 dollar episode
Restaurant example
Decreased expectations
Want to live American dream
Governor’s Office on Disability
• Two major purposes
• A) Serve as statewide clearinghouse for
disability information
• B) Serve as liaison to Governor on disability
issues
• Also identify unmet needs of PWD across the
state of Alabama
• www.good.alabama.gov
• Become a part of GOOD list.
• Call us- we can help!
Disability Specific Laws
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Americans With Disabilities Act (ADA) (1990)
ADA Amendments Act (ADAAA) (2008)
Rehabilitation Act of 1973 , Section 504
Individuals With Disabilities Education Act (IDEA)
(1990)*
• Fair Housing Act, as amended in 1988 (FHA)
• Air Carriers Access Act of 1986
* Education of All Handicapped Children Act (1975)
ADA OVERVIEW
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MAINSTREAMING
EQUAL OPPORTUNITY
ACCESS
CIVIL RIGHTS
Five Titles of the ADA
• Title I: Employment
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Title II : Public Entities
• Title III: Public Accommodations (private
businesses)
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Title IV: Telecommunications
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Title V: Miscellaneous
Definition of Disability
• Physical or mental impairment that
substantially limits a major life activity or
• Record of impairment or
• Being regarded as having an
impairment
Rights and Responsibilities
• ADA Title I
– Duty to not discriminate against qualified individuals with
disabilities
– Includes all terms and conditions of employment
– Application, interview (hiring)
– Reasonable accommodation for job and fringe benefits
– Employee with a disability has duty to maintain job
performance standards and request accommodation
according to Conopco standard
– This list does not include every possible duty, but the most
central ones
• ADAAA
– How has it changed these obligations?
Title I General Rule
• Prohibits discrimination against qualified
individuals with disabilities- persons who can
perform the essential functions of the job with
or without reasonable accommodation.
• Covers employers with 15 or more
employees
• It is not affirmative action- can still hire most
qualified person for the job
Terms and Conditions of
Employment
• Hiring and application- employers cannot ask
questions related to disability until after a conditional
offer of employment.
• Employers should focus on ability to do the job with
or without reasonable accommodation.
• Employers have a duty to provide accommodation so
that employees w/d can access privileges of
employment such as training or benefits (employee
break room, health insurance, life insurance, etc.)
• Employers must keep disability information
confidential- also HIPAA.
Employee Obligations
• Where disability is hidden, an employee
has a duty to disclose disability where
there is a need for accommodation.
• Under Conopco, such employee has to
identify a specific accommodation and
show that it is reasonable.
U.S. Supreme Court Decisions
Impact
• Sutton trilogy
– Three decisions that mandate consideration of
corrective or mitigating measures when
determining substantial limitation
– Sutton: eyeglasses
– Murphy: high blood pressure medication
– Kirkingburg: behavior modification for monocular
vision
• Toyota v. Williams
– To be an ADA disability must substantially
limit activities of central importance in life
ADA Amendments Act (ADAAA)
of 2008 (P.L. 110-325)
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President Bush signed it on September 25, 2008, and ADAAA became
law
Reverses Sutton and Toyota decisions
95% of the ADAAA deals with the definition of disability
Redirects emphasis under law to whether covered entities have met
their obligations, instead of extensive analysis of whether impairment is
a covered disability.
Reverses U.S. Supreme Court decisions which narrowed the ADA
definition of disability
Rejects EEOC regulations that define substantially limits as
“significantly restricted.” In response, the EEOC stated that it would
issue new regs.
Also clarifies that covered entities under the ADA do not have to
accommodate those regarded as having a disability.
It became effective on January 1, 2009.
Rehabilitation Act Impact
• The Rehab Act definition of disability is
changed to conform to that within the
ADAAA.
Covered Disabilities
• In the ADAAA legislative history, there
is an non- exhaustive listing which
includes
– Diabetes
– Intellectual disabilities
– Dyslexia
– Learning disabilities
Major life activities
• The ADA Amendments
Act has the following
non-exclusive list:
• Caring for oneself
• Performing manual
tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
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Standing
Lifting
Bending
Speaking
Breathing
Learning
Reading
Concentrating
Thinking
Communicating
Working
Major Life Activity
• Only one major life activity needs to be limited
to get coverage under the ADAAA.
• In particular, an individual is not denied
coverage under the ADAAA because of an
ability to do many things so long as that
person is substantially limited in just one
major life activity.
• For example, an employee may be able to
take care of many household activities, but
still be substantially limited in the major life
activity of thinking.
Major Bodily Functions
• ADAAA Also defines major life activities to include
major bodily functions like
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Immune system
Normal cell growth
Digestive
Bowel
Bladder
Neurological
Brain
Respiratory
Circulatory
Endocrine
Reproductive
List of Mitigating Measures
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Non -exhaustive
Includes
– Medication
– Medical supplies or equipment or appliances
– Low vision devices
– Prosthetics
– Hearing aids or cochlear implants
– Other implantable hearing devices
– Mobility devices
– Oxygen therapy equipment or supplies
– Use of assistive technology
– Reasonable accommodations or auxiliary aids or services
– Learned behavioral or adaptive neurological modifications
– *Final EEOC regulations add psychotherapy, behavioral therapy,
and physical therapy to the ADAAA’s list of examples. [Section
1630.2(j)(5)]
Exclusions
• “Regarded as” disability does not include
impairments that are transitory or minor.
• Transitory means an impairment with an
actual or expected duration of 6 months or
less.
• Can consider corrective measures of
eyeglasses or contact lenses
• Episodic conditions or those in remission are
covered if there is a substantial limitation
when active. This is true even if the condition
is not active at the time of determination of
the existence of disability.
Fundamental Alteration
• The ADAAA has a specific statement that it
does not change the obligation to reasonably
modify policies, practices or procedures
unless there is a fundamental alteration of the
nature of the goods, services, privileges,
advantages, etc. that are provided.
• This includes academic requirements in postsecondary institutions such as substitution of
courses to meet degree requirements.
Reverse Discrimination
• There shall be no allowance of claims
that an individual without a disability has
been subjected to discrimination
because of his or her lack of disability.
• Also, an employee without a disability
cannot sue because an employee with a
disability was given extra leave as an
accommodation, but he was not.
ADAAA Regulations
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http://www.eeoc.gov/laws/types/disability_regulations.cfm
Comment period ended on November 23, 2009
New regs. add “sitting, reaching and interacting with others” as major
life activities
EEOC regs. add hemic, lymphatic, musculoskeletal, special sense
organs and skin, genitourinary, and cardiovascular to bodily functions
Substantially limits- will take common sense approach to prove as in
relation to average person, not MD opinion or extensive analysis of
medical data.
Regs. will be retroactive to January 1, 2009
Mitigating measure added by EEOC: surgical interventions that do not
permanently eliminate an impairment
Seek to simplify proof for substantial limitation in major life activity of
working
Side effects of medication (negative effect of mitigating measure) may
be considered in determination of ADA disability (i.e. medication for
hypertension)
EEOC Rules of Construction for
Substantially Limits
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An impairment need not prevent or severely or significantly limit a major life
activity to be considered “substantially limiting.” Nonetheless, not every
impairment will constitute a disability.
The term “substantially limits” should be construed broadly in favor of expansive
coverage to the maximum extent permitted by the terms of the ADA.
The determination of whether an impairment substantially limits a major life
activity requires an individualized assessment.
In keeping with Congress’ direction that the primary focus of the ADA is on
whether discrimination occurred, the determination of disability should not
require extensive analysis.
Although determination of whether an impairment substantially limits a major life
activity as compared to most people will not usually require scientific, medical, or
statistical evidence, such evidence may be used if appropriate.
An individual need only be substantially limited, or have a record of a substantial
limitation, in one major life activity to be covered under the first or second prong
of the definition of “disability.”
Regarded As
• “Regarded as” can be established by showing that an individual
has been subjected to an illegal action under the ADA due to a
perceived physical or mental impairment whether or not it limits
or is perceived to limit a major life activity. In other words, it is
irrelevant whether a perceived disability actually limits a major
life activity.
• Example: an employee perceived as having an intellectual
disability but who has severe LD who is denied employment
(because of that perception) meets the “regarded as” prong of
disability even though the employee is not actually substantially
limited in the major life activity of thinking. (based on average
SAT or ACT scores or license passage).
• “Regarded as” employees are not entitled to reasonable
accommodation under the terms of the ADAAA.
Caveat
• The ADAAA is a relatively new law so
there are still areas that may need
clarifying.
• Clarification will come later through
court decisions and regulations.
• Today’s session is an attempt to give an
overview or outline of major changes
introduced by the ADAAA.
New Title II and III
Regulations
• In general, these final rules will take
effect 6 months (March 15, 2011) after
the date on which they are published in
the Federal Register. (September 25,
2010).
• Same safe harbor as ADAAG.
New Title II Regulations
• Definition of service animal basically includes only dogs with
limited exceptions.
• Dogs used only for emotional support are not service animals.
• The final rule also clarifies that individuals with mental
disabilities who use service animals that are trained to perform a
specific task are protected by the ADA.
• The rule permits the use of trained miniature horses as
alternatives to dogs, subject to certain limitations. To allow
flexibility in situations where using a horse would not be
appropriate, the final rule does not include miniature horses in
the definition of "service animal."
• Wheelchairs and other power-driven mobility devices must be
allowed in all areas open to pedestrian use.
• Includes VRI (Video Remote Interpreting) as a kind of auxiliary
aid to provide effective communication.
Disability Awareness
• People First Language
• Exercise Disability Etiquette
• Removal of attitudinal barriers
– Dispel myths
– Educate employees about truth
Disability Awareness
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Disability Etiquette
Make eye contact
Speak to person with a disability directly
Never ask someone associated with a
PWD what that person needs or wants
• Do not be afraid- PWD are people first
Offering Assistance
• Before helping a PWD, ask him or
her
• Do not be upset if someone refuses
help
• Ask the person how they prefer to
be helped as he or she knows best
Right Names/Words
• "The beginning of wisdom is to call
things by their right names."
Old Chinese Proverb
• "The difference between the right word
and the almost right word is the
difference between lightning and the
lightning bug."
Mark Twain
Why Care About Disability?
• Disability does not demean or lessen a
person's self worth or his or her ability to
contribute to society.
• Disability is a natural part of the human
experience. If you help people with
disabilities, you will be helping yourself
one day or a family member or a friend.
Anyone can become disabled in a split
second. (TAB)
• Disability is as equal part of diversity as
race or sex or national origin except that
is crosses all social strata.
People First Language: the Good
, the Bad and the Ugly
• Always refer to the person first:
• Example: “person with a disability”, not “disabled”
person
• Do not use “handicapped person”
• “Handicap” has origins that make it synonymous with
“beggar.”
• Others words to avoid : “ cripple, invalid, wheelchair
bound, confined to a wheelchair” etc.
• More words to avoid: “differently abled”, “challenged”,
“able bodied”, “special”, “gimp” or “gimpy”, “afflicted”,
“suffering from”, ...
Language
• Caveat: do not avoid speaking to someone
with a disability out of fear of saying the
wrong thing.
• Example: Ok to say to a person with a visual
impairment “see you later.”
• Many PWD have a sense of humor.
• Do not allow a negative experience with one
PWD to cloud attitude toward other PWD
Dispel Myths
• All PWD meet in a convention each year or
know each other
• PWD cannot work
• Disability is contagious
• PWD are superheroes or “inspirational.”
• PWD can live off the government
• PWD are "victims"
• PWD have everything paid for them
• PWD are few in number
TRUTH
• Disability is a natural part of the human
experience
• There are approximately 54 million PWD
• In Alabama there are approximately 945,000
PWD
• PWD want to be fully contributing members of
society
• PWD want what everyone else does: family,
job, transportation, happiness, etc.
• ANY QUESTIONS?
• THE END!