Changing Currents in Employment Law

1. Changing Currents in Employment Law The ADA Amendments Act of 2008 D.C. Bar CLE - June 18, 2009 Lily Garcia Employment Practices Solutions, Inc. and Of Counsel at Lippman, Semsker & Salb, LLC R. Scott Oswald The Employment Law Group® Law Firm

2. Background • ADA Amendments Act of 2008, PL 110-325, 2008 S.3406, became effective on January 1, 2009 • ADAAA passed the House on June 25, 2009 by a vote of 402-17 • Senate bill passed unanimously on September 11, 2008

3. Purposes of ADAAA • To reinstate broad scope of protection under the ADA • To abandon current standards in determining whether a person is covered under the ADA • To adopt less restrictive interpretations of the ADA’s definition of disability “in favor of broad coverage of individuals . . . to the maximum extent permitted”

4. ADAAA Broadens Definition of “Disability” • ADAAA broadens the definition of “disability” by: • Redefining the meaning of the term “substantially limits” • Amending the “regarded as” prong of the disability definition • Amending the list of activities that constitute “major life activities”

5. Definitional Amendments • Substantially Limits • In Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court stated that the ADA creates “a demanding standard for qualifying as disabled” • This led to absurd results: • Littleton v. Wal-Mart Stores, Inc., 2007 WL 1379986 (11th Cir. 2007)(mental retardation not substantially limiting) • Ogborn v. United Food and Commercial Workers Union, Local No. 881 ,305 F.3d 763 (7th Cir. 2002) (depression not substantially limited because episodic) • Pimental v. Dartmouth-Hitchcock Clinic , 236 F. Supp. 2d 177 (D.N.H. 2002) (cancer not substantially limiting because of temporary nature of condition)

6. Definitional Amendments • Substantially limits • ADA AA rejects the Supreme Court’s narrow interpretation of the phrase “substantially limits” in Toyota, which required an individual to have an impairment that prevented or severely restricted that individual from doing activities central to most people’s daily lives • ADA AA does not specifically define “substantially limits” but directs courts and the EEOC to interpret the phrase broadly, i.e., to revise the portion of its current regulations that improperly defines the term “substantially limits” as “significantly restricted as to … particular major life activity” to be consistent with this Act, including the amendments made by this Act.

7. Definitional Amendments • ADA AA clarifies that an impairment that is episodic or in remission is a disability under the ADA if it “would substantially limit a major life activity when active.” • ADA AA clarifies that an employee need not prove that she was discriminated against because she was “regarded as” having an impairment that is “substantially limiting” • ADA AA reiterates that an impairment need only limit one major life activity • ADA AA expands definition of “major life activity” to include any “major bodily function”

8. Definitional Amendments - Major Life Activities Pre-ADA Amendments • ADA did not enumerate specific activities that qualified as “major life activities” • EEOC regulations considered the following activities caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working as “major life activities” Post-ADA Amendments • ADA AA includes a non-exhaustive list of activities that constitute “major life activities” • For the first time the category of “major life activities” includes “major bodily functions”

9. Definitional Amendments • Major life activities include, but are not limited to the following: • caring for oneself • performing manual tasks • seeing • hearing • eating • sleeping • walking • standing • lifting • bending • speaking • breathing • learning • reading • concentrating • thinking • communicating • working

10. Definitional Amendments • Major Bodily Function (embraced by the new definition of major life activity) includes but is not limited to the following: • Functions of the immune system • Normal cell growth • Digestive • Bowel • Bladder • Neurological • Brain • Respiratory • Circulatory • Endocrine • Reproductive functions

11. Definitional Amendments • Specific conditions identified explicitly as disabilities: • Epilepsy • Diabetes • Muscular Dystrophy • Amputation • Intellectual Disabilities • Multiple Sclerosis • Cancer • Head Trauma • Dyslexia • Learning Disabilities • Cerebral Palsy • Heart Condition • Mental Illness • HIV • Immune Disorders • Liver Disease • Kidney Disease.

12. Definitional Amendments • Mitigating Measures • In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the Supreme court held that whether an individual is disabled is viewed through the lens of the “measures that mitigate the individual’s impairment.” • Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002) (diabetes not a disability due to mitigating measures) • McClure v. Gen. Motors Corp., 570 N.E.2d 1322 (muscular dystrophy not a disability because plaintiff “has successfully learned to live and work with his disability, and to adapt himself accordingly”)

13. Definitional Amendments • Mitigating Measures • ADA AA eliminates the effects of mitigating measures in determining whether an individual has a disability • The ADA AA (S 3406): “to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Airline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973

14. Definitional Amendments • Mitigating Measures • In the Wake of the ADA AA the “primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

15. Definitional Amendments • Mitigating Measures • When determining whether an impairment substantially limits a major life activity it shall do so “without regardto the ameliorative effects of mitigating measures,” such as: • medication, medical supplies, equipment, or appliances, low vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

16. Retroactivity • ADA AA is retroactive where the employee is seeking prospective injunctive relief • Jenkins v. Nat’l Bd. of Med. Examiners, 2009 WL 331638 (6th Cir. Feb. 11, 2009); but see EEOC v. Agro Distrib., LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009); Moran v. Premier Educ. Group, LP, 599 F.Supp.2d 263, 2009 WL 507505, at *7 (D.Conn.2009); Schmitz v. Louisiana, 2009 WL 210497 (M.D.La. Jan. 27, 2009) (citing Rudolph v. U.S. Enrichment Corp., Inc., 2009 WL 111737 (W.D.Ky., Jan. 15, 2009).

17. Questions? For further information, contact: R. Scott Oswald The Employment Law Group® Law Firm soswald@employmentlawgroup.com www.employmentlawgroup.com Tel: 202.261.2806 Fax: 202.261.2835