Legal Update on the ADA Amendments Act and Major Life Activities

1. Legal Update on the ADA Amendments Act and Major Life Activities Sponsored by: ADA Minnesota and Minnesota Vocational Rehabilitation October 19-20, 2009 Presented by: Barry Taylor, Legal Advocacy Director and Alan Goldstein, Senior Attorney atEquip for Equality Materials Prepared Under a Grant from the DBTAC: Great Lakes ADA Center 1

2. Session Outline Background - Original ADA and the ADA Amendments Act Major Life Activities After the Passage of the ADA Amendments Act (ADAAA) EEOC Proposed Regulations (NPRM) Analysis of Specific Major Life Activities Does the ADAAA Apply Retroactively?

3. Major Life Activities and the Text of the ADA Definition of actual disability under the ADA (and ADAAA): Physical or mental impairment that substantially limits one or more major life activities Major life activities are not defined in the text of the original ADA No examples of major life activities in the text of the original ADA

4. Major Life Activities and the EEOC’s Regulations EEOC Definition of Major Life Activities: basic activities that the average person can perform with little or no difficulty EEOC Examples of Major Life Activities: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working Illustrative, Not Exhaustive: EEOC regulations make clear not an exclusive list of major life activities

5. Additional Major Life Activities Identified by EEOC Appendix: In the Appendix to its regulations, EEOC also identified sitting,standing, lifting and reaching as major life activities Compliance Manual: EEOC identified thinking,concentrating and interacting with others as other major life activities Enforcement Guidance: EEOC identified sleeping as a major life activity when it issues its Guidance on Psychiatric Disabilities and the ADA

6. Deference to EEOC? Anticipated courts would defer to EEOC’s interpretations/guidance on definition of disability Supreme Court refused to defer to EEOC regulations (Sutton v. United Air Lines) Supreme Court found Congress did not give any agency authority to interpret definition of disability After Sutton, courts generally took narrow view of what is an ADA disability, and confusion arose with inconsistent rulings across the country 6

7. Purpose of the ADA Amendments Act (ADAAA) ADAAA was passed to: Invalidate Supreme Court decisions that incorrectly narrowed definition of disability Restore ADA protection for individuals Congress intended to protect Make clear that focus should be on whether covered entities met ADA obligations, instead of extensive analysis on definition of disability

8. ADA Amendments Act: Definition of Disability Definition of disability remains the same: Initial versions of ADAAA modified definition of disability, but in the end, ADAAA did not change the ADA’s original definition of disability Rules of Construction: However, to make clear interpretation should be different, ADAAA explicitly states that the definition of disability “shall be construed in favor of broad coverage” … to the maximum extent permitted by the terms of this Act.”

9. Regulatory Authority ADAAA grants EEOC, DOJ and DOT authority to issue regulations interpreting the definition of disability under the ADA Repudiates Supreme Court’s ruling in Sutton allowing courts to ignore federal regulations interpreting definition of disability EEOC directed to issue new regulations including redefining “substantial limitation”

10. Additional ADAAAProvisions • Episodic conditions are examined when active. • No cause of action for “reverse discrimination.” • Mitigating measures are not examined (except ordinary eye glasses and contact lenses). • Note: Comments to EEOC NPRM (Notice of Proposed Rulemaking) state people who use eyeglasses may be “regarded as” being disabled if they must take a vision test without glasses or contacts.

11. Mitigating Measures EEOC NPRM: Mitigating measures may include: • Medication, medical supplies, equipment, or appliances, low-vision devices,… prosthetics …, 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” • Learned behavioral or adaptive neurological modifications; or • Surgical interventions, except for those that permanently eliminate an impairment.

12. Temporary Conditions There is no “durational minimum” for conditions that may constitute current disabilities as “an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Proposed rule 1630.2(j)(2)(v) However, “temporary, non-chronic impairments of short duration with little or no residual effects... usually will not substantially limit a major life activity.” Proposed rule 1630.2(j)(8) Temporary conditions are not covered under the “regarded as” prong of the definition of disability.

13. “Regarded As” Prong • The bill broadens coverage under the ADA’s “regarded as” prong of the definition of disability. • This prong may apply “whether or not the impairment limits or is perceived to limit a major life activity.” • No reasonable accommodations for people who are only covered under the “regarded as” prong. • Exception – Impairments that are “both transitory (lasting or expected to last for six months or less) and minor.” • Sprains, fractures that heal completely, mild intestinal virus,… • Exception to the Exception: According to EEOC NPRM comments, transitory conditions may be covered under the actual disability prong of the definition of disability

14. Major Life Activities Under the ADA Amendments Act (ADAAA)

15. ADA Amendments Act: Major Life Activities Congress added examples of major life Activities to the text of ADA Goal: To avoid previous problems of courts ignoring regulations of federal agencies and inconsistent rulings Generally, Congress listed major life activities previously identified by EEOC and added a few more. NPRM Definition of Major Life Activities: Those basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty. Proposed rule 1630.2(i)

16. ADA Amendments Act: Major Life Activities caring for oneself walking & standing seeing lifting hearing learning eating speaking sleeping breathing performing manual tasks concentrating & thinking working (type of work) reading (new in ADAAA) bending (new in ADAAA) communicating (ADAAA) Interacting with others (Very New - Not in ADAAA) List is Not Exhaustive - no negative implication by omission

17. ADAAA New Category: Major Bodily Functions In ADAA Added in NPRM immune system neurological special sense organs & skin normal cell growth brain genitourinary digestive respiratory cardiovascular bowel circulatory hemic bladder endocrine lymphatic reproductive functions musculoskeletal EEOC NPRM contains three lists: 1. Impairments that should consistently be a disability, 2. Impairments that may be disabling for some but not others, & 3. Impairments that are usually not disabilities .Prop. Rule 1630.2(h)

18. Possible Application of Major Bodily Functions immune system: HIV/AIDS, auto-immune disorders, lupus normal cell growth: cancer digestive: Crohn’s disease, celiac disease bowel: ulcerative colitis bladder: kidney disease reproductive functions: infertility

19. More Possible Application of Major Bodily Functions neurological: multiple sclerosis, epilepsy brain: schizophrenia, developmental disabilities respiratory: asthma circulatory: heart disease, high blood pressure endocrine: diabetes Note: The second category of major bodily functions will make it much easier for people with many of these impairments identify a major life activity.

20. EEOC NPRM – In General “The definition of disability … shall be construed broadly, to the maximum extent permitted by the … ADA.” Proposed Rule 1630.1(4) No need to address activities “of central importance to daily life.” ADAAA shifts the “focus” to the question of whether discrimination occurred, not on “whether an individual meets the definition of ‘disability.’” Proposed rule 1630.2(j)(2)(i) Disability determination “should not require extensive analysis” and “often may be made using a common-sense standard, without resorting to scientific or medical evidence.” Proposed rule 1630.2(j)(2)(iv)

21. EEOC NPRM – Substantially Limiting a Major Life Activity An impairment is a disability… if it “substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population.“ An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Proposed rule 1630.2(j)(1) Relevant inquiry is “how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” Proposed rule 1630.2(j)(2)(vi)

22.  Analysis of Specific Major Life Activities

23. Consistently Limited in MLAs EEOC NPRM Comments “Because of certain characteristics associated with these impairments, the individualized assessment of the limitations … will consistently result in a determination that the person is substantially limited in a major life activity.” “In addition to examples such as deafness, blindness, intellectual disability (formerly termed mental retardation), partially or completely missing limbs, and mobility impairments requiring the use of a wheelchair, other examples of impairments that will consistently meet the definition include, but are not limited to—” NPRM 29 C.F.R. § 1630.2(j)(5)

24. EEOC: Consistently Limiting Impairments (A) Autism Substantially limited in: communicating, interacting with others, or learning (B) Cancer Substantially limited in normal cell growth (C) Cerebral palsy Substantially limited in: walking, performing manual tasks, speaking, or brain functions (D) Diabetes Substantially limited in: endocrine system functions (the production of insulin…)

25. EEOC: Consistently Limiting Impairments (E) Epilepsy Substantially limited in: functions of the brain or, during a seizure, seeing, hearing, speaking, walking, or thinking (F) HIV or AIDS Substantially limited in: functions of the immune system (G) Multiple sclerosis and muscular dystrophy Substantially limited in: neurological functions, walking, performing manual tasks, seeing, speaking, or thinking (H) Major depression, bipolar disorder, PTSD, OCD, or schizophrenia Substantially limited in: brain functions, thinking, concentrating, interacting with others, sleeping, or caring for oneself.

26. EEOC: Impairments That May Be Disabling for Some But Not Others General Rule: Interpret in favor of “broad coverage” These Impairments: May require “more analysis” But “should not demand an extensive analysis.” Query:Is that clear? Some EEOC Examples: High Blood Pressure – Is there a substantial limitation of circulatory system function? Hyperthyroidism – Is there a substantial limitation of endocrine system function? 26

27. More EEOC Examples: Impairments Disabling for Some Back or Leg Impairment – An individual with a back or leg impairment who is substantially limited compared to most people in the length of time she can stand, the distance she can walk, or the weight she can lift, is an individual with a disability (such as where the individual has a back impairment resulting in a 20-pound lifting restriction that is expected to last for several months or more). Note: “several months…”

28. Impairments Disabling for Some – Asthma Asthma -An individual with asthma who is substantially limited in respiratory functions and breathing compared to most people, as indicated by the effects experienced when exposed to substances such as cleaning products, perfumes, and cigarette smoke, [has] a disability.

29. Impairments Disabling for Some – Psychiatric Impairments Psychiatric Impairment: A person with a psychiatric impairment (e.g., panic disorder, anxiety disorder, or some forms of depression other than major depression), who is substantially limited compared to most people, as indicated by the time and effort required to think or concentrate, the diminished capacity to effectively interact with others, the length or quality of sleep the individual gets, the individual's eating patterns or appetite, or the effect on other major life activities, is an individual with a disability.

30. Impairments Disabling for Some – Learning Disability Learning Disability: An individual with a learning disability who is substantially limited in reading, learning, thinking, or concentrating compared to most people, as indicated by the speed or ease with which he can read, the time and effort required for him to learn, or the difficulty he experiences in concentrating or thinking, is an individual with a disability, even if he has achieved a high level of academic success, such as graduating from college. The determination … does not depend on what an individual is able to do in spite of an impairment.

31. Some New Specified Major Life Activities Bending: Before the ADAAA, bending was not listed in prior EEOC regulations. Courts questioned whether bending is a major life activity.See, e.g.,Parkinson v. Anne Arundel Medical Center, Inc., 214 F. Supp. 2d 511 (D. Md. 2002). Not any more – Bending is a major life activity Reading: Before the ADAAA, reading was not listed in prior EEOC regulations. Most courts had agreed that reading is a major life activity under the ADA. See, Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). No question now – Should help people with learning disabilities.

32. A New Specified Activity (Type of Work – not MLA): Driving Driving: Before the ADAAA, driving was not discussed in EEOC regulations or guidance. Most courts rejected driving as an ADA major life activity, although some recognized traveling. Not mentioned in text of ADAAA Not listed as MLA in regulations But it is listed as a possible requirement for a “type of work” under NPRM comments regarding working as a MLA. Query: Can driving be a major life activity? What about commuting? Tip: Using a “major bodily function” will help people who may be limited in driving if it is required by the job.

33. Other Specified Major Life Activities Communicating: Prior regulations listed “speaking” as a major life activity, but not “communicating.” Plaintiffs could lose if limited in communicating, but not speaking. Sevigny v. Maine Educ. Assn. 1999 WL 1995208 (D. Me. 1999). Concentrating: Prior regulations identified this as a MLA. However, courts didn’t always agree. Tip: People with intellectual and learning disabilities or mental illness may be able to use this major life activity or the bodily function of brain activity. Sleeping: Prior EEOC regulations did not list this but EEOC Guidance on Psychiatric Disabilities mentioned it. Most courts found it a MLA - but limitation often not substantial.

34. Specific Major Life Activities:Reproduction & Sexual Relations Reproduction: Not previously identified as MLA by EEOC Nevertheless, Supreme Court recognized reproduction is a major life activity. Bragdon v. Abbott, 524 U.S. 624 (1998). Not listed in ADAAA, but immune system and reproductive function listed as major bodily functions in ADAAA. Bragdon is still good law. Sexual Relations: Not identified by EEOC as a major life activity, nor listed in ADAAA. After Bragdon, some courts have recognized sexual relations as a major life activity, while others have not. Was identified as a major life activity in House report Open question under ADAAA.

35. Some More Specific Major Life Activities Elimination of Bodily Waste: People with kidney disease had trouble identifying a MLA but can now use bladder function. Some courts have identified “elimination of bodily waste” as a MLA. Pumping and Circulating Blood: People with heart disease can now use the MLA of circulatory system function. Some courts have identified “pumping and circulating blood” as a major life activity. 35

36. Specific Major Life Activities:Performing Manual Tasks Performing Manual Tasks: EEOC and courts generally agreed performing manual tasks is major life activity. However, Supreme Court required plaintiffs to show substantially limited in tasks of “central importance in most people’s lives.” Toyota v. Williams, 534 U.S. 184 (2002). In ADAAA, Congress repudiated analysis in Toyota. (Supreme Court “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.”) EEOC NPRM:DO NOT look at tasks of “central importance in most people’s lives.”

37. Specific Major Life Activities:Interacting with Others Interacting with Others: EEOC previously identified interacting with others as a major life activity in guidance. Courts are split on whether this is a major life activity. ADAAA does not list interacting with others – although identified in House Committee Report. Not identified as MLA in EEOC NPRM. Prediction: Continued litigation is likely on this issue.

38. EEOC NPRM – Substantially Limited in Working Working: “[A]n individual with a disability will usually be substantially limited in another major life activity” aside from working making further analysis “unnecessary.” An impairment need only substantially limit one major life activity. If “an individual has obtained employment elsewhere, it is not dispositive” of whether there is a substantial limitation in working. Definition shall be “construed broadly to the maximum extent permitted… and should not demand extensive analysis.” Issue: Does the impairment substantially limit “an individual's ability to perform, or to meet the qualifications for, the type of work at issue.” Proposed rule 1630.2 (j)(7)(i)-(iv)

39. EEOC NPRM – Type of Work Type of Work is Defined As: “Job the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.” Proposed rule 1630.2(j)(7)(iii)(A), (B)

40. EEOC NPRM – Substantially Limited in Working Nature of the work: “May often be determined by reference to the nature of the work an individual is substantially limited in performing… as compared to most people having comparable training, skills, and abilities. Examples: “Commercial truck driving,… assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs.” Job-Related Requirements: “May also… reference… job-related requirements that an individual is substantially limited in meeting … as compared to most people performing those jobs. Proposed rule 1630.2(j)(7)(iii)(B), (C)

41. EEOC NPRM – Job-Related Requirements Examples of job-related requirements that are characteristic of types of work: Repetitive bending, reaching, manual tasks or heavy lifting; prolonged sitting or standing; extensive walking; driving; “working under certain conditions,” high temperatures, noise levels, or stress; or rotating, irregular, or excessively long shifts. Proposed rule 1630.2(j)(7)(iii)(C)

42. Major Life Activities: Summation How have major life activities changed? Is the definition of “substantial limitation” clear? How has the definition of “working” changed? Is working still the MLA of last resort? How does the new standard for working compare with the former standard, i.e., “significantly restricted in class of jobs or a broad range of jobs”? Note: Remember, individuals must still be qualified to perform essential job functions with or without reasonable accommodations.

43. The ADAAA Effective Date and Retroactivity The effective date of the law was 1/1/09 General view is that statutes are not applied retroactively (Landgraf v. USI Film Products, 511 U.S. 244 (1994)) However, arguable that the ADAAA should be applied retroactively since it has a “restorative purpose” that reflects Congress’ original intent that the Supreme Court did not follow. (Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994)

44. The ADAAA Effective Date and Retroactivity (cont’d) 7th Circuit: ADAAA does not apply retroactively (King v. City of Madison, 550 F.3d 598 (7th Cir. 2008)) 6th Circuit: ADAAA applies retroactively when plaintiff only seeking prospective injunctive relief (Jenkins v. National Board of Medical Examiners, 2009 WL 331638 (6th Cir. Feb. 11, 2009)) 9th Circuit: ADAAA provides guidance on Congress’ original intent (Rohr v. Salt River Project Agricultural Improvement and Power Dist., 2009 WL 349798 (9th Cir. Feb. 13, 2009))

45. Resources • ADA Minnesota – www.ADAMinnesota.org • Minnesota Vocational Rehabilitation – www.deed.state.mn.us • Equip For Equality - www.equipforequality.org • DBTAC: Great Lakes ADA Center - www.adagreatlakes.org • Equal Employment Opportunity Commission (ADA Proposed Regulations and Guidance) -www.eeoc.gov • Text of ADA Amendments Act – www.ada.gov/pubs/ada.htm

46. QUESTIONS? Legal Update on the ADA Amendments Act and Major Life Activities

47. THE END Legal Update on the ADA Amendments Act and Major Life Activities Sponsored by: ADA Minnesota and Minnesota Vocational Rehabilitation October 19-20, 2009 Materials Prepared Under a Grant from the DBTAC: Great Lakes ADA Center