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Understanding the ADA Amendment Act. 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.

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the americans with disabilities act
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

the americans with disabilities act1
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

the americans with disabilities act2
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

the americans with disabilities act3
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

the americans with disabilities act4
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

the americans with disabilities act5
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

ada amendment act
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

ada amendment act1
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]”

ada amendment act2
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

ada amendment act3
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

ada amendment act4
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

ada amendment act5
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

ada amendment act6
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

ada amendment act7
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

adaaa part 2 stay tuned
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