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Everything you wanted to know about ADAAA, but were afraid to ask! . Joe Bontke EEOC Houston District Office Texas Governor’s Committee on People with Disabilities. What’s in your “backpack”?. "Everyone is entitled to their own opinions, but not their own facts.“ Daniel Patrick Moynihan.

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slide1

Everything you wanted to know

about ADAAA,

but were afraid to ask!

Joe Bontke

EEOC Houston District Office

Texas Governor’s Committee on People with Disabilities

slide4

Only 18% of PWD are born with it

Source: NIDRR Demographics and Statistics RRTC at Cornell University’s Employment and Disability Institute, calculations from 2003 ACS PUMS file performed by Robert Weathers, 2005.

4

a few facts
A Few Facts…

*32,690 Retaliation Charges

95,402 Total Charges Filed!

percentage of ada charges by basis top 5 disabilities 1993 2007
Percentage of ADA Charges by Basis (Top 5 Disabilities), 1993-2007

6

Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research funded by the USDE-NIDRR.

of ada eeoc claims by issue top 5 1993 2007
% of ADA EEOC claims by Issue(Top 5), 1993-2007

Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007.

Research Funded by the USDE-NIDRR.

slide8
What arethe 5 new rules the EEOC just issued for interpreting the new ADA?'
  • Do the new regs apply retroactively to previous ADA claims?
  • What are the conditions that are still excluded from the definition of a disability?
ad triple a
AD triple A
  • -On September 25, 2008, the ADA Amendments Act (ADAAA) was signed into law, it became effective on January 1, 2009.
  • -The U.S. Senate and the U.S. House of Representatives both unanimously passed the ADAAA.
  • -The ADAAA focuses on the discrimination at issue instead of the individual's disability.
slide10
-It makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC ADA regulations
  • -The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.
  • -However, it changes the way that the statutory terms should be interpreted..
ada amendments act
ADA Amendments Act
  • Most significantly, the ADAAA ….
  • directs EEOC to revise the portion of its regulations that defines the term "substantially limits"
slide12
expands the definition of "major life activities" by including two non-exhaustive lists:
  • 1. The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
  • 2. The second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine, and reproductive functions")
ada amendments act13
ADA Amendments Act
  • States that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
ada amendments act14
ADA Amendments Act
  • Provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
ada amendments act15
ADA Amendments Act
  • Provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
  • Emphasizes that the definition of "disability" should be interpreted broadly.
slide18

Finished files are the re-

sult of years of scientif-

ic study combined with the

experince of many years

of experts.

slide20

Finished files are the re-

sult of years of scientif-

ic study combined with the

experince of many years

of experts.

slide21

Is your perception

sometimes your truth?

who would you pick for a ceo position
Who would you pick for a CEO position?
  • Candidate A cannot walk. He cannot stand without braces that run the entire length of his legs; cannot get out of bed, get dressed, reach the bathroom or get to his desk without the assistance of another person and a wheelchair.
  • Candidate B has a glandular disorder and back problem. He takes daily medication and often uses painkillers. He has been hospitalized nine times in the last decade, once for 19 days, a couple of times for a week at a time.
  • Candidate C has a history of depression.
americans with disabilities act definition of disability
Americans with Disabilities Act-Definition of “Disability”
  • A physical or mental impairment that substantially limits a major life activity;
  • A record of such an impairment;
  • Being regarded as having such an impairment
  • But, the meaning of the terms “major life activities” and “substantially limits,” as well as the definition of “regarded as,” are quite different than under the original ADA.
purposes of ada amendments act adaaa
Purposes of ADA Amendments Act (ADAAA)
  • To restore the ADA’s broad protections as intended by Congress; and
  • To reject the Supreme Court’s view in the Sutton trilogy that “disability” should be determined by reference to the effects of mitigating measures
purposes of adaaa
Purposes of ADAAA
  • To reject the Supreme Court’s holding in Toyota that the ADA requires a “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities
  • To express Congress’s expectation that EEOC will revise its regulation defining “substantially limits” as “significantly restricted”
substantially limited if discrimination was prior to 1 1 09
“Substantially Limited”-if discrimination was prior to 1/1/09
  • In old regulations, EEOC said to be substantially limited, an individual should be either unable to perform the major life activity or significantly restricted in the ability to perform a major life activity.
  • Consider the nature and severity of the impairment;the duration or expected duration of the impairment; and the long term impact of the impairment.
adaaa definition of disability
ADAAA Definition of “Disability”
  • Definition of “disability” construed broadly
  • Mitigating measures (other than ordinary corrective lenses) should not be considered
  • Impairment can be a disability even if episodic or in remission
substantially limits if discrimination occurred on or after 1 1 09
“Substantially Limits” if discrimination occurred on or after 1/1/09
  • ADA Amendments Act does not affirmatively define the term “substantially limits.”
  • With ADAAA, the disability determination is “an appropriate threshold issue” but “not an onerous burden”
  • See 2008 Senate Managers’ Statement at 7
major life activities
Major Life Activities
  • Include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
major life activities30
Major Life Activities
  • The term “major life activities” also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
major life activities31
Major Life Activities
  • Lists in the ADA Amendments Act are non-exhaustive.
  • Some activities that the Commission previously recognized in prior interpretive guidance or in litigation – such as reaching, sitting, interacting with others, and eliminating waste – are not specifically included in the ADA Amendments Act, but field staff should assume that these can also be considered major life activities
episodic in remission
Episodic/In Remission
  • An impairment that is “episodic or in remission” is a disability if it would substantially limit a major life activity when active
  • An individual with epilepsy who is substantially limited in a major life activity such as caring for self, walking, seeing, speaking, or thinking during a seizure would be an individual with a disability.
episodic in remission33
Episodic/In Remission
  • An individual with cancer that is in remission would be an individual with a disability under the first prong of the definition if recurrence of the cancer would substantially limit a major life activity
  • Other examples include multiple sclerosis, hypertension, diabetes, asthma, major depression, bipolar disorder, and schizophrenia.
field guidance
Field Guidance
  • The regulations on the ADAAA may contain further definition of the term “substantially limits,”
  • Until those regulations are final, EEOC staff should give a broad interpretation to the term as is intended by the findings and purposes of the Act.
slide35
For example, in most cases, it will be easy to conclude that impairments such as diabetes, epilepsy, paraplegia, blindness, deafness, bipolar disorder, monocular vision, multiple sclerosis, and Parkinson’s disease, among others, will substantially limit a major life activity.
comparison to most people on after 1 1 09
“Comparison to most people” on/after 1/1/09
  • The ADA Amendments Act legislative history uses the term “most people in the general population” instead of the EEOC regulatory phrase “average person in the general population.”
comparison to most people on after 1 1 0937
“Comparison to most people” on/after 1/1/09
  • The legislative history indicates that a fact-finder may often be able to compare an individual’s limitation to the ability of most people in the general population using a common-sense standard, without resorting to scientific or medical evidence
comparison to most people on after 1 1 0938
“Comparison to most people” on/after 1/1/09
  • Example, the ability of an individual with an amputated limb to perform a major life activity is compared to other people in the general population, not to other amputees.
  • Similarly, a seventy-year old employee with heart disease is compared to other people in the general population, not merely to other seventy-year olds or to other people with heart disease.
adaaa don t consider mitigating measures in determining coverage
ADAAA –Don’t consider Mitigating Measures in Determining Coverage

Mitigating measures include:

  • medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc.
  • Use of assistive technology
  • Reasonable accommodations
  • Learned behavioral or adaptive neurological modifications
one exception consider ordinary eyeglasses or contact lenses
One Exception-Consider Ordinary Eyeglasses or Contact Lenses
  • Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error”
  • Distinguished from “low vision devices,” defined as “devices that magnify, enhance, or otherwise augment a visual image”
regarded as disabled
“Regarded As” Disabled
  • Broader definition of “regarded as” disabled that would cover anyone subjected to an action “prohibited by this Act” (example, not hired or fired) because of a real or perceived physical or mental impairment
  • “Regarded as” would exclude impairments that are transitory (less than six months) and minor
  • Individuals “regarded as” disabled not entitled to reasonable accommodation
adaaa field guidance
ADAAA Field Guidance
  • The most important practical effect of the ADA Amendments for EEOC investigators and attorneys is that they should expect to be spending more time and effort evaluating the merits of disability discrimination and reasonable accommodation claims, and less on determining whether an individual meets the definition of disability.
slide43
General rule: An employer must provide a reasonable accommodation to an individual with a disability if requested and if doing so does not pose an undue hardship
reasonable accommodation
Reasonable accommodation
  • A reasonable accommodation is a change in the workplace, or in the way things are usually done, that provides equal employment opportunities for individuals with disabilities
undue hardship
Undue hardship:
  • Significant difficulty or expense
  • Focus on resources and circumstances of employer
  • Consider financial difficulty as well as reasonable accommodations that are extensive, substantial, or disruptive
  • consider impact on operations
slide46
GINA
  • Genetic Information Non Discrimination Act (GINA)
  • Title II of the Act covers all entities subject to Title VII of the Civil Rights Act of 1964, including the federal government.
  • Title II becomes effective on November 21, 2009.
  • EEOC’s proposed regulations have been published
slide47
GINA
  • Prohibits covered entities from using genetic information about an individual when making employment decisions. (no exceptions)
  • Prohibits the acquisition and disclosure of genetic information, with limited exceptions
  • Includes an anti-retaliation provision.
genetic information
“Genetic Information”
  • Includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history.
  • Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder.
  • Genetic information also does not include tests for alcohol or drug use.
gina confidentiality
GINA-Confidentiality
  • Employers must keep the information confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files.
  • An employer may keep genetic information in the same file as medical information subject to the ADA.
exception acquisition of genetic information
Exception-- Acquisition of Genetic Information
  • One exception, sometimes referred to as the “water cooler” exception, applies to inadvertent acquisition of genetic information.
  • Example-- a supervisor overhears a conversation between co-workers in which genetic information is discussed or receives genetic information in response to a question about the general health of an employee or employees family member, or where an employer receives genetic information as part of documentation an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act (ADA) or other similar law.
ada disability related questions and medical exams
ADA-Disability Related Questions and Medical Exams
  • General Principles:
    • Pre-offer – no questions or exam
    • Post-offer – all questions/exams are OK as long as required of all applicants in same job category
    • During employment – must be job-related and consistent with business necessity
    • To process reasonable accommodation request – if disability and/or need for accommodation not obvious or already known.
gina ada and post offer medical inquiries
GINA/ADA and post-offer medical inquiries
  • GINA limits an employer’s ability to obtain genetic information after making a job offer.
  • Although the ADA currently permits a covered entity to obtain family medical history or conduct genetic tests of job applicants once an offer of employment has been made, provided this is done for all entering employees in the same job category
  • That will be prohibited upon the effective date of GINA.
other provisions
Other provisions
  • No disparate impact under GINA, but the Act directs that a commission be established after six years to report on possibility of allowing disparate impact claims
  • Title II of GINA does not directly address the issue of harassment claims. But, in describing the prohibited employment practices, Congress adopted language similar to that used in Title VII and other equal employment opportunity statutes, evincing its intent to prohibit discrimination with respect to a wide range of practices, including harassment
remedies under gina
Remedies under GINA
  • Same remedies as Title VII
  • Reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages) and attorneys’ fees and costs.
  • Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA.
  • Punitive damages are not available against federal, state, or local government employers.
consider if covered under ada prior gina effective date
Consider if covered under ADA prior GINA effective date
  • Remember, for alleged discrimination on genetic information prior to 11/21/2009, conduct may be prohibited by ADA
  • Example, carpal tunnel conductivity tests
lilly ledbetter fair pay act law reinstates eeoc position on timeliness of filing wage bias charges
LILLY LEDBETTER FAIR PAY ACTLaw Reinstates EEOC Position on Timeliness of Filing Wage Bias Charges
  • Ledbetter v Goodyear Tire & Rubber (2006)
    • In pay discrimination cases the federal statute of limitations begins to run when the pay setting decision is made.
    • Lilly Ledbetter Fair Pay Act 2009
    • Unlawful employment practice occurs
    • each time wages, benefits, or other
    • compensation is paid

EEOC

slide57
From www.eeoc.gov

The U.S. Equal Employment Opportunity Commission

PANDEMIC PREPAREDNESS IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT

the Americans with Disabilities Act (ADA) and pandemic planning in the

workplace. It identifies established ADA principles that are relevant to

questions frequently asked about workplace pandemic planning such as:

How much information may an employer request from an employee who calls in

sick, in order to protect the rest of its workforce when an influenza pandemic

appears imminent?

When may an ADA-covered employer take the body temperature of employees

during a pandemic?

Does the ADA allow employers to require employees to stay home if they have

symptoms of the pandemic influenza virus?

lilly ledbetter fair pay act
Lilly Ledbetter Fair Pay Act
  • Lily Ledbetter Fair Pay act restores the paycheck accrual rule
  • Charge alleging pay disparity based on protected characteristic is timely if filed within 180/300 days (300 days in our district) of pay decision, when subjected to the pay decision OR discriminatory pay check
  • Retroactive effective date of May 28, 2007
slide59
Lilly Ledbetter Fair Pay Act amends Title VII, the ADA, the ADEA, and the Rehabilitation Act so it applies if compensation discrimination was based on other protected characteristics under those statutes, such as race, national origin, age, disability etc.
slide60

Factors Impacting Successful Employment Outcomes for People with Disabilities*

*Illustrative, not exhaustive, list

Systems / Organizational Factors

  • Individual Factors
  • Nature of disability/impairment
  • Prior work experience
  • Prior training
  • Family/social supports
  • Public Policy Factors
  • Social Security Benefits
  • Work Incentives
  • Health Care Coverage
  • Nondiscrimination Legislation
  • Workforce Development Initiatives
  • Efficacy/philosophy of state VR service delivery systems
  • Efficacy/philosophy of community-based support services
  • Employer policies and practices
myth or fact

MYTH OR FACT?

There is a higher percentage of people with disabilities employed than those people without a disability

slide62

MYTH

78% of people without disabilities reported being employed full or part time, whereas that figure for people with disabilities is only 35%

barriers
barriers
  • Myths are roadblocks that interfere with the ability of individuals with disabilities to have equality in employment.
  • Roadblocks result from lack of experience or interaction with persons with disabilities
  • Lack of familiarity nourishes negative attitudes concerning employment of persons with disabilities.
accommodations information
Accommodations Information

● a 2003 National survey found that only 24% had to make accommodations for employees with disabilities.

  • a study of employers making accommodations found half of all accommodations had no cost
  • those that did had a median cost of $600.
  • one-third of employers allow telecommuting.
whose responsibility is it
Whose responsibility is it
  • It is the employee’s responsibility to request an accommodation
  • However, the employer is responsible for notifying applicants and employees of its obligation to provide accommodations
how does an employer determine if an individual is covered
How does an employer determine if an individual is covered?
  • Once an employee asks for an accommodation, an employer may request documentation.
  • The information must be kept confidential.
  • The information must not be more intrusive or extensive than is job-related or consistent with business necessity.
how is the right accommodation determined
How is the right accommodation determined?

Informal, interactive process between employer and employee.

  • A good resource is

The Job Accommodation Network

1 800 526 7234

  • Employer makes final determination for the best R.A. in compliance with the ADA.
  • Not required if it would impose an undue hardship
slide68

NORTHWEST DBTAC

REGION 10

New England DBTAC

ADA

Region I

Region II

Region X

Region III

Region IX

Region IV

Region VIII

Region V

Region VI

Disability and Business Technical Assistance Centers DBTACs 1 800 949 4ADA

1-800-949-4232

slide69

90% of education is knowing where to find the information when you need it.

Joe Bontke

713 209 3436 office

713 907 2855 cell

joe.bontke@eeoc.gov email