The ADAAA The The ADAAA Final Regulations: What You Need to Know

1. The ADAAA The The ADAAA Final Regulations: What You Need to Know PRESENTED BY: Mike Birrer mbirrer@ccsb.com 214-855-3113 Angelina LaPenotiere alapenot@ccsb.com 214-855-3095 6.20.11

2. ADA – Supreme Court Interpretations • Sutton v. United Airlines – Mitigating measures must be considered when determining whether an impairment substantially limits a major life activity. • Toyota Motor Mfg. v. Williams – “Substantially limits” only occurs when the impairment prevents or severely restricts the employee from doing activities that are of central importance to most people’s lives.

3. Purpose • Old: To implement the ADA. • New: To implement the ADA and “to make it easier for people with disabilities to obtain protection under the ADA. . . The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.” (1630.1(4)).

4. Definition of Disability • Old: Disability means (i) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment. • New: Old language + • 1630.2(g)

5. Definition of “Regarded As” • Old: Impairment must be perceived as substantially limiting a major life activity. • New: “This means that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both ‘transitory and minor.’” 1630.2(g)(1)(iii)

6. More on Regarded As • “Where an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation . . .the evaluation of coverage can be made solely under the ‘regarded as’ prong, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.” • 1630.2(g)(3)

7. Transitory and Minor • New: Transitory and minor is an objective standard, and an employer cannot defeat “regarded as” coverage of an individual by demonstrating that it subjectively believed the impairment was transitory and minor. “Transitory” is defined as lasting or expected to last six months or less. • 1630.15(f)

8. Hypothetical • Sandy Secretary has an ankle injury that heals poorly causing on-going issues. Cathy Clerk has a bad case of flu from which it takes two weeks to recover. Sandy and Cathy both contend they were denied a significant job benefit because of their impairments. • Does Sandy have a potential disability claim? (Fleck v. Wilmac, 2011 WL 1899198 (E.D.Pa) • Does Cathy have a potential disability claim?

9. Hypothetical • Wendy Waitress has burn scars covering one side of her face. The scars are fully healed, and don’t cause any problems. Her employer, Tip-Top Restaurant, tells Wendy – “Our customers have been complaining about your scars and find them disturbing. We are in a customer service business, and so we regrettably have to terminate you.” Does Wendy have an ADA claim? • What if Wendy responds, “I can get cosmetic treatments, but that will require me to be off work every Friday for six months.” Does Tip-Top have to consider this as a request for a reasonable accommodation?

10. Definition of Physical or Mental Impairment • Old: Any physiological/mental condition or disorder, cosmetic disfigurement, or anatomical loss affecting certain body systems. • New: Same, but adds immune and circulatory systems to non-inclusive list of examples of body systems. • 1630.2(h)

11. Definition of Regarded As Disabled • NPRM: A prohibited action based on an actual or perceived impairment includes, but is not limited to, an action based on a symptom of such impairment, or based on medication or any other mitigating measure used for such an individual. (1630.2(l)(2)). • New: Deletes that statement. Preamble says final regulations do not address the issue of discrimination based on symptoms or mitigating measures under the “regarded as” prong because the issue is too complex. But notes that no negative inference should be drawn from removal of statement. (Fed. Reg. 16985)

12. No Reverse Disability Discrimination • Final regulations affirmatively establish that an individual cannot state a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability. • 1630.4(b)

13. Hypothetical • Due to the reasonable accommodation of a physical disability, Barry Brown receives a flexible schedule allowing him to arrive to work between 8:30 am and 9:30 am. Patti Parent who works in the cubicle next to Barry requests the same flexible schedule in order to participate in her children’s carpool, but the employer says, No! She responds – That is unlawful discrimination and promises a lawsuit. • Does she have a claim for disability discrimination? • What if she claimed gender discrimination using Barry as a comparator? • What could HR say to Patti in order to explain the different decisions?

14. Definition of Record of Disability • Old: Having a record of disability. • New: Notes that an individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed for a past disability. • 1630.3(k)(3)

15. Hypothetical • Henrietta Hotel was diagnosed with bipolar disorder and requested a flexible schedule that would allow her to come in two hours late. Employer refuses to discuss reasonable accommodations, and she is fired for coming to work late. Post-termination, she determines she was misdiagnosed - simply suffering unusual but temporary side effects from allergy medication. • Does Henrietta satisfy any of the prongs under the definition of disability? • Can she sue based on failure to reasonably accommodate?

16. Definition of Major Life Activity • Old: caring for oneself, performing manual tasks, seeing, hearing, walking, speaking, breathing, and working. • New: adds eating, sleeping, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating, interacting with others, and the operation of a number of bodily functions, including the operation of an individual organ within a body system. • 1630.2(i)

17. Definition of Substantially Limits • Old: Unable to perform a major life activity that the average person in the general population can perform, or significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity. • New: Nine rules of construction • 1630.2(j)

18. Rules of Construction For “Substantially Limits” • i. Term is construed broadly. • ii. An impairment need not significantly restrict the individual from performing a major life activity to be substantially limiting. • iii. Focus of ADA analysis should be on whether employer complied with its obligations and whether discrimination has occurred, not whether impairment “substantially limits.” • iv. Individualized assessment necessary, but the standard for determining “substantially limits” is “lower than the standard” applied before the ADAAA. • v. Analysis usually does not require scientific, medical, or statistical analysis, though it’s allowed. • 1630.2(j)

19. Rules of Construction For “Substantially Limits” • vi. Conduct analysis without regard to positive mitigating measures. • 1630.2(j) • -- can consider ordinary eyeglasses and • contact lenses • -- must consider negative effects of • mitigating measures

20. Hypothetical • Alvin Air Traffic Controller tells his supervisor that he has epilepsy that is fully under control, but the medicine makes him tired. So, he wants to take 3 twenty minute naps during his shift, and asks that they buy a cot and find a quiet place to put it. • Does Doug have a disability? • Do they have to buy the cot and find a quiet place? What should they do?

21. Hypothetical • Lily Lawyer discovered she was dyslexic when she was in the 7th grade. By spending extra time studying and taking therapy to improve her concentration, she managed to graduate Harvard undergrad and law with honors. Lily tells her employer she needs to come in 2 hours late each day. Her employer says no. She says she has dyslexia. • Does Lily have a disability? • Does her employer have to allow her to come in 2 hours late each day?

22. Rules of Construction For “Substantially Limits” (cont’d) • vii. Impairments that are episodic or in remission are disabilities if they are substantially limiting when active. • 1630.2(j)

23. Hypothetical • Jane Maxwell has asthma that only flares up when she is exposed to certain chemical odors, such as perfume. • Does Jane have a disability?

24. Rules of Construction For“Substantially Limits” (cont’d) • viii. Impairment that substantially limits one major life activity does not need to impact other major life activities. • ix. Effects of an impairment lasting fewer than six months can be substantially limiting (transitory and minor does not apply here). • 1630.2(j)

25. More on Substantially Limits • NPRM: included lists of impairments that (i) will consistently meet the definition of disability, (ii) may be disabling for some but not others, and (iii) usually not disabilities. • New: Deletes (ii) and (iii), offers new suggestions for what major life activity is substantially limited with respect to impairments in list (i). • 1630.2(i)(3)(ii)

26. More on Substantially Limits • Old: Consider nature and severity of impairment, duration or expected duration of impairment, and permanent or expected long term impact of impairment. • NPRM: Deleted reference to condition, manner, and duration. • New: Adds it back and expands to “condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity.” 1630.2(i)(4)(i)

27. More on Condition, Manner,and Duration • New: Appendix notes that duration is only one factor, and “impairments that last only a short period of time are typically not covered but may be covered if sufficiently severe.” • App.; Fed. Reg. 17011

28. Feldman v. Law Enforcement Associates, Corp., • 2011 WL 891447 (E.D. N.C.) • ● Employee suffered mini-stroke • ● Hospitalized several days, required several additional weeks to recover • ● Court said though impairment was short in duration, its effect were severe • ● Motion to Dismiss denied

29. Substantially Limited in Working • Old: Significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes. • NPRM: Substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue. • New: Deleted from regulation, only found in appendix. Goes back to “class of jobs or broad ranges of jobs” language, but notes that it “will be applied in a more straightforward and simple manner” than they were prior to the ADAAA. • App.; See Fed. Reg. 17013

30. Hypothetical • Barry Bagman has a back condition that limits him from lifting more than 50 pounds. His job description for baggage handler states that he must be able to lift 60 pounds on a regular basis. • Is Barry substantially limited in the major life activity of working? Lifting? • Should the employer engage in an interactive dialogue regarding a reasonable accommodation?

31. Recent Cases • Rumbin v. Assoc. of American Medical Colleges, 2011 WL 1085618 (D. Conn. March 21, 2011) (lack of evidence comparing individual’s limitations to general population) • Gesegnet v. J.B. Hunt Transport, Inc., 2011 WL 2119248 (W.D. Ky. May 26, 2011) (evidence that impairment was not substantially limiting, but court assumes disability anyway) • Gray v. Walmart Stores, Inc., 2011 1831780 (E.D. N.C. May 12, 2011) (Plaintiff fails to provide sufficient facts to determine limitation)

32. Thank You!Questions / Answers