The Adaaa -msatc09

Recoverin g Lost Ground! The ADA Amendments Act of 2008 Presented by

Don Brandon DBTAC Northwest & Jason Burke State ADA Coordinator

AGENDA • Appraisal of How Civil Rights Laws Are Formulated • How The Definition of Disability Was Built • ADA 1990 & 1991 Changes • The Supreme Court Decisions That Narrowed Protections • ADAAA 2008 Definition of Disability Tune-Up • Practical Impact on Human Resources Management

INTRODUCTION

The ADA Is A Civil Rights Law.

ADA’s Purpose The ADA Was Supposed To Focus Primarily On Whether A Covered Entity Engaged In Discrimination On The Basis Of Disability; Not Require An Extensive Analysis Regarding The Nature Of The Individual’s Disability.

Civil Rights Laws are Formula Driven X + Y - 2 = 10 6 + 6 - 2 = 10 7 + 5 - 2 = 10 9 + 3 - 2 = 10 8 + 4 - 2 = 10 Reasonable Accommodation

F air en ps om ities rou •W r ino ous G mp •M i o g i l sC • Re rker’ o •W

•R ea Ac s on • E com ab le s m s •P en od t r • I ogr ia l at io nd am Fun n Ca ivi d Mo ct io u se dif n al / C ica as e tio -by n -

EQUALITY

Sa me

General Rule – The ADAAA It is Against the Law to Discriminate Against a Qualified Individual on the Basis of Disability, Who can Perform the Essential Functions of a Job, With or

ADA Formula • Not What to Think • But How to Think Process • To Create Equal Opportunity

GR + (CUH [+ or -] CDT) EO = GFC

(Old Definition Of Disability)

A Pers on W ith A Di sa bility is:

• Someone -with... a physical or mental impairment, that substantially limits a major life activity. • Someone who -has a record of... • Someone who - is regarded as...

WC

ADA

FMLA

Substantial Limitation When an Impairment Prevents an Individual from Performing a MLA or Significantly Restricts the Condition, Manner, or Duration Under Which an Individual can Perform a MLA, as Compared to the Average Person in the

EEOC Regulations Of 1991 • Created Higher Threshold for Disability • “Substantial” • Mitigating Measures Not A Factor • Sutton Trilogy Removed Mitigation & Made • Measures 8 Major Life Activities - Not Exhaustive Them List A Factor • Determination of Disability An Employer Decision

Sutton Toyota v Trilogy Williams

Supreme Court Changes to Definitions

• Not Disabled Enough

• Disability Discrimination Rarely Explored • 16 Examples Case Scenarios

Impact of Supreme Court Decisions • Penalized For Successful Management of Disability • Disability Discrimination Rarely Explored

ADA Definition 1990 – Congress Modeled After After 504 Case law – Functional Definition With 3 Prongs – Practically - Was A Manageable Definition – Legally - Definition Was Vulnerable • Denial of Disability in Society • Framework for Interpreting Disability Law Based in Worker Comp & Social Security • EEOC Guidance on Substantial Limitation Followed National Mores

Impact of Supreme Court Ruling & Mitigating Measures (Sutton v UA) • Orr v. Wal Mart • Todd v .Academy Corp • Epstein v Kalvin-Miller INC • Eckhaus v. Consolidated Rail Corp • Schriner v. Sysco Food Serv. • McMullin v. Ashcroft

Supreme Court Ruling (Toyota vs Williams) Of Substantial Limitation On Major Life Activity • Mclure v. GM Corp • EEOC v. Sara Lee Corp • Williams v. Cars Collision Ctr. • Phillips v. Wal Mart Inc • Tockes v. Air-land Transport • Pimentaal v. DartmouthHitchcock Clinic • Didier v. Schwan Food Co. • Littleton V. Wal Mart

16 Court Cases That Demonstrate Failure of Legal Construct of ADA DD of 1990

• Orr v. Wal Mart • Todd v .Academy Corp • Epstein v KalvinMiller INC • Eckhaus v. Consolidated Rail Corp • Schriner v. Sysco Food Serv. • McMullin v. Ashcroft

• Mclure v. GM Corp • EEORC v. Sara Lee Corp • Williams v. Cars Collision Ctr. • Phillips v. Wal Mart Inc • Tockes v. Air-land Transport • Pimentaal v. Dartmouth-

ADA Definition of Disability

Why Was The ADAAA Needed?

Courts Narrowed Definition

Congress Acted

Revised Definition of Disability

ADAAA

THE ADAAA Restores The Original Intent Of The ADA By • Reinstating The Broad Scope Of Protection; • Moving The Focus From The Threshold Issue Of Disability To The Primary Issue Of Discrimination; And • Reaffirming That Although The Definition Of Disability Is Intended To Be Broad, Only

ADAAA Changes The Structure Of The ADA Definition of Disability

Focus Is On Merits Of The Case I.E., Whether A Covered Entity Engaged In Discrimination Against A Qualified Individual On The Basis Of Disability Rather Than Threshold Question Of Whether The Individual Was

PURPOSES OF THE ADAAA • Retaining The Existing Definition Of The Term “Disability” But Clarifying The Key Words And Phrases; • Changing The Structure Of The Law To Focus On Discrimination; • Including Construction Clauses To Explain Intent; • Authorizing Federal Agencies To Regulate The Definition Of “Disability”; And • Including Conforming Amendments Regarding Title V Of The Rehabilitation Act.

A Person With A Disability Is: Someone: •with … a physical or mental impairment that substantially limits a major life activity. •has a record of …

ADA

F MLA

WC

DEFINITION OF DISABILITY PRONG 2 (Record Or History Of Impairment) • No Change To Current Law Or Regulatory Interpretation.

DEFINITION OF DISABILITY PRONG 3 (Regarded As Having An Impairment) • Individuals Not Subject To Functional Test. • Individual Must Prove Adverse Action Taken Because Of An Actual Or Perceived Impairment. • Does Not Include Transitory And Minor Impairments. • Covered Entities Not Required To Make Reasonable Accommodations Or

CONSTRUCTION CLAUSES • Workers Compensation And Other Disability Benefit Programs Not Affected. • Fundamental Alteration Defense Not Affected. • Reverse Discrimination Claims Not Authorized.

Re-Expansions Of Definition of Disability (DD) Via ADAAA • More Like Civil Rights Act, Only Affected the DD • Retains Same Wording in Definition of Disability • Redefines Or Sets New Parameters on How DD to Be Interpreted • 17 Major Life Activities & 9 Bodily Functions • Corrective Vision Not Covered Unless… • Mitigation Measures Not To Be Considered

Examples of Major Life Activities • Learning • Thinking • Concentratin g • Interacting with Others • Caring for Oneself • Speaking • Performing Manual

• • • • • • •

Walking Seeing Breathing Hearing Sleeping Working Not an Exhaustive List

Examples of Major Bodily Functions Functions of: – The Immune System, – Normal Cell Growth, – Digestive, – Bowel, Bladder, – Neurological, Brain, – Respiratory, Circulatory, – Endocrine And Reproductive Functions

Substantial Limitation Redefined • New Boundaries Less Restrictive Qualification of Disability • Corrected Supreme Court Cases • Corrected or Lowered the EEOC Bar for Substantial • Almost Regulatory in Scope

Impact Employment Policy and HR Management

• Less Diagnostic Measurement by Employer and the Courts • Focus on Discrimination of Qualified individuals and Refusal To Accommodate • Understanding Reasonable Accommodation (RA) As a Process • Interactive Process and The RA

Major Life Activities & Bodily Functions • Don’t Be Frightened by the List • ADA Always Intended Broad Coverage

Old 3 Part Test - New 4 Part Test

ADA 1990 Courts Used a 3 Part Test 1. Physical or Mental Impairment 2. Substantial Limitation 3. Major Life Activates

ADA AA 2008 Courts Will Use A 4 Part Test 1. Evidence Of Membership In a Protected Class 2. Subjected To Adverse Employment

What This Means for Employers

• Organizations That Have Been Complying With The Original Intent Of The ADA Will Likely Be Unaffected Since The ADAAA Merely Restores That Original Intent And More Clearly Defines Disability. • Existing Policies And Procedures, Including Written Ones, Should Be Reviewed And Updated To Ensure They Are In Compliance With The ADA andd This Act, Especially Given That More Conditions Are Now Explicitly Considered Disabilities. • Reasonable Accommodations Are Only Required To Be Provided To Individuals Who Have, Either Currently Or A Record Of,

FINAL THOUGHTS FOR EMPLOYERS • Treat all employees with dignity and respect • Recognize that the definition of disability is broad but only qualified individuals who can prove discrimination are entitled to relief • Adopt an interactive process • Train and retrain all staff • Develop disability expertise • Document decisions

HR Intensive Elements of Good Faith

• ID Essential Functions of the Job • Interaction with Employee • Consideration of ADA Qualifying Event

• Consideration of Affordability & Impact On Workplace • Problem Resolution of RA

What This Means for Individuals and Employees with Disabilities

• Overall, The ADAAA Will Restore Protections Against Disability Discrimination To A Broader Range Of Individuals Including Those With Mental Illness, Epilepsy, Muscular Dystrophy, Cancer, Diabetes, Cerebral Palsy And Perceived Disabilities. • Substantially Limits Now Needs To Be Interpreted Less Severely With Regards To Effect On A Major Life Activity.

FINAL THOUGHTS FOR INDIVIDUALS WITH DISABILITIES • Know Your Rights And Responsibilities • Pursue Jobs For Which You Are Qualified • Engage In An Interactive Process • Document Your Qualifications And Adverse Actions Taken By

Why Was The ADAAA Needed? Definition of Disability EEOC & Courts Narrowed Definition Congress Acted Revised How Definition of Disability To Be Interpretted

ADAAA

Resources DBTAC Northwest 800-949 4232 www.dbtacnorthwest.org

Job Accommodation Network (JAN) 800-526-7234 www.jan.wvu.edu

Thank You

What’s New Or Different About The Definition Of Disability The ADAA Retains Without Amendment The Existing Definition Of The Term “Disability” But Clarifies The Key Words And Phrases In The Definition. 41

In Washington State… The Definition of Disability is Broader than in the ADA • Temporary Conditions are Covered • A Condition Does Not Have to Impact a Major Life Activity • A Condition Does Not Have to be Substantially Limiting