ADA Amendments ActADA Amendments Act

How Does It Affect You?How Does It Affect You?

William Barrett & Heath GallowayWilliam Barrett & Heath Galloway

Americans with Americans with Disabilities Act of Disabilities Act of

1990 (ADA) Overview1990 (ADA) Overview Who is Covered?Who is Covered? All private sector employers and most All private sector employers and most

governmental employees engaged in any activity governmental employees engaged in any activity “affecting commerce” with 15 or more “affecting commerce” with 15 or more employeesemployees

Qualified PersonQualified Person A job applicant or employee with a “disabilityA job applicant or employee with a “disability Who can perform the “essential functions” of the Who can perform the “essential functions” of the

current job (or a suitable alternative)current job (or a suitable alternative) With or without “reasonable accommodation”With or without “reasonable accommodation”

ADAADA Defining DisabilityDefining Disability

Physical or mental impairment that Physical or mental impairment that “substantially limits” one or more “substantially limits” one or more “major life activities”“major life activities”

A record of such impairment; orA record of such impairment; or Being regarded as having such an Being regarded as having such an

impairmentimpairment

Substantial Substantial LimitationLimitation

To constitute a disability, the To constitute a disability, the limitation of a major life activity limitation of a major life activity must be substantialmust be substantial An individual with a significant An individual with a significant

impairment will not be protected by the impairment will not be protected by the ADA (and the employer is not necessarily ADA (and the employer is not necessarily obligated to follow the act) unless the obligated to follow the act) unless the impairment limits one of the individual’s impairment limits one of the individual’s major life activities in a substantial waymajor life activities in a substantial way

Essential Functions of the Essential Functions of the JobJob

A particular job duty is an A particular job duty is an essential function if the job essential function if the job exists, in significant part, to exists, in significant part, to perform that function, and if perform that function, and if removing the function would removing the function would fundamentally alter the nature fundamentally alter the nature of the jobof the job

Reasonable Reasonable AccommodationAccommodation

Making existing facilities readily accessible to Making existing facilities readily accessible to and usable by persons with disabilitiesand usable by persons with disabilities

Job restructuring, modifying work schedules, Job restructuring, modifying work schedules, reassignment to a vacant positionsreassignment to a vacant positions

Acquiring or modifying equipment or devices, Acquiring or modifying equipment or devices, training material, or policiestraining material, or policies

Employer is required to make reasonable Employer is required to make reasonable accommodation to known disability of accommodation to known disability of qualified applicant or employee if it would not qualified applicant or employee if it would not impose an “undue hardship”impose an “undue hardship”

ADA Amendments Act ADA Amendments Act (ADAAA)(ADAAA)

Background:Background: Amends the ADAAmends the ADA Effective January 1, 2009 Effective January 1, 2009 Overturns several employer-friendly Overturns several employer-friendly

Supreme Court decisionsSupreme Court decisions

Key Provisions of Key Provisions of ADAAAADAAA

Provide a broader protected class by: Provide a broader protected class by: Prohibiting consideration of mitigating factors Prohibiting consideration of mitigating factors Expanding definition of key terms within Expanding definition of key terms within

“disability” definition“disability” definition Including non-exhaustive list of covered Including non-exhaustive list of covered

major life activities; andmajor life activities; and Overturning controversial Supreme Court Overturning controversial Supreme Court

decisions that narrowed scope of ADA decisions that narrowed scope of ADA protectionprotection

Prohibit Inclusion of Prohibit Inclusion of Mitigating MeasuresMitigating Measures

Sutton v. United Airlines, Sutton v. United Airlines, 527 U.S. 184 527 U.S. 184 (1999)(1999) Identical twins with visual disability that could Identical twins with visual disability that could

be corrected were denied pilot positionsbe corrected were denied pilot positions Sutton not disabled due to prescribed Sutton not disabled due to prescribed

medication (corrective eye measures)medication (corrective eye measures) Under Under Sutton, Sutton, employers could consider employers could consider

mitigating measures in determining disabilitymitigating measures in determining disability

Prohibit Inclusion of Prohibit Inclusion of Mitigating MeasuresMitigating Measures

Congress rejects Congress rejects SuttonSutton requirements that requirements that whether an impairment substantially limits a whether an impairment substantially limits a major life activity is to be determined with major life activity is to be determined with reference to the ameliorative effects of reference to the ameliorative effects of mitigating measures mitigating measures

Under the ADAAA, employers cannot factor in Under the ADAAA, employers cannot factor in mitigating measures (medication, prosthesis or mitigating measures (medication, prosthesis or hearing aid) when determining disabilityhearing aid) when determining disability

Redefining DisabilityRedefining Disability Toyota Motor Mfg., Kentucky, Inc. v. Toyota Motor Mfg., Kentucky, Inc. v.

WilliamsWilliams,, 534 U.S. 184 (2002) 534 U.S. 184 (2002) Williams claimed disability due to her Carpal Tunnel Williams claimed disability due to her Carpal Tunnel

SyndromeSyndrome Court denied claim; she must show “an impairment Court denied claim; she must show “an impairment

that prevents or severely restricts [her] from doing that prevents or severely restricts [her] from doing activities that are of central purpose to most activities that are of central purpose to most people’s daily lives,” regardless of whether the people’s daily lives,” regardless of whether the unaccommodated impairment prevents her from unaccommodated impairment prevents her from performing essential job functionsperforming essential job functions

Redefining DisabilityRedefining Disability ADAA rejects ADAA rejects Toyota Toyota standard that the terms standard that the terms

“substantially” and “major” need to be “substantially” and “major” need to be interpreted strictly to create a demanding interpreted strictly to create a demanding standard for qualifying as disabledstandard for qualifying as disabled

Under the ADAAA the definition of disability “shall Under the ADAAA the definition of disability “shall be construed in favor of broad coverage under the be construed in favor of broad coverage under the Act, to the maximum extent permitted by the Act” Act, to the maximum extent permitted by the Act”

An impairment that is “episodic or in remission” is An impairment that is “episodic or in remission” is a disability “if it would substantially limit a major a disability “if it would substantially limit a major life activity when active”life activity when active”

““Substantially Substantially Limits”Limits”

Congress rejects current EEOC ADA Congress rejects current EEOC ADA regulation that defines term regulation that defines term “substantially limits” as “significantly “substantially limits” as “significantly restricts”restricts”

EEOC directed to revise its regulation to EEOC directed to revise its regulation to define “substantially limits” consistent define “substantially limits” consistent with finding and purpose of ADAAAwith finding and purpose of ADAAA

Requires a lower degree of functional Requires a lower degree of functional limitation than the previous Standardlimitation than the previous Standard

““Substantially Substantially Limits”Limits”

It is to be construed “It is to be construed “BroadlyBroadly, in favor of , in favor of Expansive CoverageExpansive Coverage

Still an individual Assessment in each Still an individual Assessment in each casecase

Determination of limitation is made Determination of limitation is made without considering mitigating measures without considering mitigating measures such as medication or hearing aidssuch as medication or hearing aids

Only one exception – “ordinary” Only one exception – “ordinary” eyeglasses or contact lenseseyeglasses or contact lenses

New Definition of Major New Definition of Major Life ActivitiesLife Activities

Major life activities defined to Major life activities defined to include caring for oneself, include caring for oneself, performing manual tasks, seeing, performing manual tasks, seeing, hearing, eating, sleeping, walking, hearing, eating, sleeping, walking, standing, lifting, bending, standing, lifting, bending, speaking, breathing, learning, speaking, breathing, learning, reading, concentrating, thinking, reading, concentrating, thinking, communicating, and workingcommunicating, and working

New Definition of New Definition of Major Life ActivitiesMajor Life Activities

Definition also includes operation Definition also includes operation of major bodily functions, including of major bodily functions, including but not limited to immune system; but not limited to immune system; cell growth; digestive, bladder, and cell growth; digestive, bladder, and bowel functions; neurological and bowel functions; neurological and brain functions; respiratory and brain functions; respiratory and circulatory functions; endocrine circulatory functions; endocrine functions; reproductive functionsfunctions; reproductive functions

““Regarded as Prong”Regarded as Prong” Under ADAAA- individual is “regarded as” Under ADAAA- individual is “regarded as”

disabled if subjected to discrimination disabled if subjected to discrimination because of an actual or perceived because of an actual or perceived impairment “whether or not the impairment impairment “whether or not the impairment limits or is perceived to limit a major life limits or is perceived to limit a major life activity”activity”

Under ADAAA- “regarded as” does not apply Under ADAAA- “regarded as” does not apply to impairments that are transitory and to impairments that are transitory and minor (defined as impairment with actual or minor (defined as impairment with actual or expected duration of 6 months or less)expected duration of 6 months or less)

The ADAAA In ActionThe ADAAA In Action

Formerly there was a list of Formerly there was a list of impairments that would impairments that would “consistently,” “sometimes,” or “consistently,” “sometimes,” or “usually not” be disabilities“usually not” be disabilities

» Final regulations provide nine (9) Final regulations provide nine (9) rules of construction to guide rules of construction to guide analysisanalysis

By applying the nine (9) rules, By applying the nine (9) rules, some impairments will virtually some impairments will virtually always be disabilitiesalways be disabilities

Examples: epilepsy, diabetes, Examples: epilepsy, diabetes, cancer, HIV, Bipolar disordercancer, HIV, Bipolar disorder

““Nine (9) Rules of Nine (9) Rules of Construction”Construction”

““Substantially Limits” is construed broadlySubstantially Limits” is construed broadly An impairment is a disability if it An impairment is a disability if it

substantially limits the ability of an substantially limits the ability of an individual to perform a major life activity individual to perform a major life activity compared to most people. Need compared to most people. Need notnot prevent or significantly restrict the activityprevent or significantly restrict the activity

Primary focus in cases is the question of Primary focus in cases is the question of covered employees meeting their covered employees meeting their obligations and whether discrimination has obligations and whether discrimination has occurred. So “substantial limitation” occurred. So “substantial limitation” should not require extensive analysisshould not require extensive analysis

““Nine (9) Rules of Nine (9) Rules of Construction”Construction”

Determination of “substantial Determination of “substantial limitation” is an individual limitation” is an individual assessmentassessment

Comparison to “most people” usually Comparison to “most people” usually will not require scientific, medical, or will not require scientific, medical, or statistical analysis. Such evidence is statistical analysis. Such evidence is not prohibited, howevernot prohibited, however

Determination of “substantial Determination of “substantial limitation” made without considering limitation” made without considering mitigating measuresmitigating measures

““Nine (9) Rules of Nine (9) Rules of Construction”Construction”

Impairments that are episodic Impairments that are episodic (migraines) or in remission (cancer) can (migraines) or in remission (cancer) can be substantially limiting as they would be substantially limiting as they would be when activebe when active

Individual need only be substantially Individual need only be substantially limited in one major life activity to be limited in one major life activity to be disableddisabled

No minimum duration. Impairments No minimum duration. Impairments lasting fewer than six (6) months may lasting fewer than six (6) months may be substantially limitingbe substantially limiting

Caselaw ExamplesCaselaw Examples

Gibbs v. ADS Alliance Data Systems, Inc.Gibbs v. ADS Alliance Data Systems, Inc. Retail credit card customer service, Retail credit card customer service,

collectionscollections Plaintiff or sales/service repPlaintiff or sales/service rep Carpal Tunnel Syndrome – injury Carpal Tunnel Syndrome – injury

sustained at her second job at CVS sustained at her second job at CVS Pharmacy and due to repetitive work at Pharmacy and due to repetitive work at ADSADS

Medical release for full duty after 6 Medical release for full duty after 6 monthsmonths

Plaintiff’s burdens metPlaintiff’s burdens met

Caselaw ExamplesCaselaw Examples Sibilla v. Follett Corp.Sibilla v. Follett Corp.

Plaintiffs (two sisters) alleged that Follett (a Plaintiffs (two sisters) alleged that Follett (a bookstore chain) “regarded” them as disabled bookstore chain) “regarded” them as disabled because they were very overweightbecause they were very overweight

Case dismissed before trial (summary Case dismissed before trial (summary judgment)judgment)

Evidence was insufficient to show Follett Evidence was insufficient to show Follett “regarded” the sisters as overweight/obsese, “regarded” the sisters as overweight/obsese, or that Follett “regarded” being overweight as or that Follett “regarded” being overweight as a disabilitya disability

Case note: ADAAA “regarded as” prong no Case note: ADAAA “regarded as” prong no longer requires a plaintiff to prove their longer requires a plaintiff to prove their impairment limits – or is perceived to limit – a impairment limits – or is perceived to limit – a major life activitymajor life activity

Caselaw ExamplesCaselaw Examples Moloney v. Home Depot USA, Inc.Moloney v. Home Depot USA, Inc.

Plaintiff alleged he was terminated from his Plaintiff alleged he was terminated from his sales associate position due to his mental sales associate position due to his mental disability (low IQ, educationally impaired) disability (low IQ, educationally impaired)

Case turned on a determination of whether Case turned on a determination of whether his supervisors were aware of his disability his supervisors were aware of his disability

Store and its managers were informed of his Store and its managers were informed of his impairment during hiring. Direct Supervisors impairment during hiring. Direct Supervisors knew he lived in a group home, recognized he knew he lived in a group home, recognized he was “slow,” and had trouble focusingwas “slow,” and had trouble focusing

Termination after 10 years of generally Termination after 10 years of generally positive reviews for “poor customer service” positive reviews for “poor customer service” was therefore a question for the jury to decidewas therefore a question for the jury to decide

Impact of ADAAAImpact of ADAAA

Disability threshold will be Disability threshold will be much lowermuch lower

Cases will focus on:Cases will focus on: Discrimination analysisDiscrimination analysis Has employer reasonably Has employer reasonably

accommodated individualaccommodated individual

Impact of ADAAA on Impact of ADAAA on EmployersEmployers

Harder for businesses to defend Harder for businesses to defend claims due to increased protected claims due to increased protected classclass

Expect to see dramatic increase in Expect to see dramatic increase in accommodation requests and accommodation requests and litigationlitigation

Increased exposure to significant Increased exposure to significant damagesdamages

Best PracticesBest Practices Given the ADAAA, many Americans will meet the Given the ADAAA, many Americans will meet the

definition of disability & qualify for the Act’s definition of disability & qualify for the Act’s protectionprotection

Employers need to reevaluate current policies and Employers need to reevaluate current policies and hiring practiceshiring practices

Companies should train HR professionals, managers, Companies should train HR professionals, managers, supervisors, etc., on the importance of the ADAAAsupervisors, etc., on the importance of the ADAAA

Management must exercise greater care when Management must exercise greater care when making personnel decisions for employees with making personnel decisions for employees with health impairments or medical conditionshealth impairments or medical conditions

Questions?Questions?

For Further Information For Further Information ContactContact

William Barrett at wbarrettWilliam Barrett at wbarrett@williamsmullen.com

oror

Heath Galloway at hgallowayHeath Galloway at hgalloway@williamsmullen.com