Understanding the ADA Amendment Act

1. Understanding the ADA Amendment Act

2. THE AMERICANS WITH DISABILITIES ACT Enacted in 1990 Prohibited discrimination against “qualified individuals with disabilities” Qualified if the individual could perform the essential function of the job with or without reasonable accommodation

3. THE AMERICANS WITH DISABILITIES ACT A “qualified person with a disability is anyone who has “a physical or mental impairment that substantially limits one or more major activity” Has a record of such impairment Is regarded as having such impairment

4. THE AMERICANS WITH DISABILITIES ACT A major life activity defined by regulation Caring for one self Performing manual tasks Walking, seeing, hearing, breathing Learning working

5. THE AMERICANS WITH DISABILITIES ACT Courts interpreted “major life activity” narrowly The Sutton Trilogy (Sutton v. United Airlines, Murphy v. United Parcel, Albertson, Inc. v. Kirkingburg) Evaluate disability in light of corrective measures Eyeglasses Medication

6. THE AMERICANS WITH DISABILITIES ACT Toyota Motor Mfg. v. Williams To be substantially limited in performing a manual task, the impairment must be such that prevents the person from doing activities that were of central importance to must people’s daily lives Focused on ability to do other things in finding no disability

7. The AMERICANS WITH DISABILITIES ACT Court’s strict interpretation of disability led to very few plaintiff victories EEOC statistics no reasonable cause in over 50% of cases resolved between 1997-2007 Cause in only 6.2% and ultimately prevailed in only 2.2% of those cases 2006 Study found that defendants prevailed in 97% of the ADA discrimination claims

8. ADA AMENDMENT ACT Could be worse – ADA Restoration Act – would have eliminated “substantially limits” requirement ADAAA had bipartisan support and has some good provisions for employers Shifts focus from who is disabled to whether employers reason for action is justifiable

9. ADA Amendment Act Sutton Triology and Toyato Motors rejected: “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” Expressly states that the ADA’s definition of disability “shall be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of [the ADA]”

10. ADA Amendment Act Congress included a non-exhaustive list of major life activities and major bodily functions that will constitute disabilities Caring for oneself , performing manual tasks, seeing hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions

11. ADA Amendment Act Evaluate an employee’s disability without regard to mitigating factors Employees with conditions such as epilepsy, diabetes, depression, bipolar disorder, cancer and many other conditions controlled/managed through medication are disabled under the Act. Eyeglasses/contacts excluded

12. ADA Amendment Act Regarded as disabled Previously had to show employer considered employee disabled to show the employer regarded them unable of performing a range of job, not just the job they were denied Now any actual or perceived impairment gives rise to a cause of action, not just if the impairment is perceived to limit a major life activity Most likely to arise in hire, promotion etc. claims no duty to accommodate perceived disability

13. ADA Amendment Act Individuals with episodic conditions or a condition that is in remission are evaluated as if condition is active Asthma Cancer PTSD Epilepsy All may be considered disability even if controlled by medicine or in remission

14. ADA Amendment Act Important to start now Review Job Descriptions Needed for interactive process Focus can employee do the essential function of the job with or without accommodation Review Handbook and/or Policy Who evaluates what is a reasonable accommodation? Do employees know where/how to raise the issue Interactive process will be key to defending litigation

15. ADA Amendment Act Education is Key Employee must request accommodation Let employee know how to make such a request If employee fails to ask, employer can still be liable for failure to accommodate held to a know or should have known standard Sudden changes in performance Other signs of impairment Now can explore whether disability is involved – no duty to accommodate if no disability

16. ADAAA part 2 - Stay tuned ADAAA directs EEOC to issues regulations (think DOL FMLA regulations) Much will be back in the courts – focus now on what the employer did to accommodate