OVERVIEW OF THE ADA AMENDMENTS ACT OF 2008 Seventh Floor 1501 M Street, NW Washington, DC 20005...

OVERVIEW OF THE ADA OVERVIEW OF THE ADA AMENDMENTS ACT OF AMENDMENTS ACT OF

20082008

Seventh Floor1501 M Street, NWWashington, DC 20005Phone: (202) 466-6550 Fax: (202) 785-1756

Seventh Floor1501 M Street, NWWashington, DC 20005Phone: (202) 466-6550 Fax: (202) 785-1756

PRESENTED BY PRESENTED BY ROBERT “BOBBY” SILVERSTEIN ROBERT “BOBBY” SILVERSTEIN

POWERS PYLES SUTTER & POWERS PYLES SUTTER & VERVILLE, P.C.VERVILLE, P.C.

[email protected]@ppsv.com

INTRODUCTIONINTRODUCTION

The ADA is a civil rights law. The ADA is a civil rights law.


The ADA was supposed to focus The ADA was supposed to focus primarilyprimarily on whether a covered on whether a covered

entity engaged in discrimination entity engaged in discrimination on on the basis of disability;the basis of disability; notnot require require an an extensive analysis extensive analysis regarding regarding

the nature of the individual’s the nature of the individual’s disability.disability.

INTRODUCTIONINTRODUCTIONExamples of individuals intended to be Examples of individuals intended to be

protected under the ADA:protected under the ADA:– An individual denied employment on the basis of An individual denied employment on the basis of

mental retardation.mental retardation. – A woman denied re-employment after her A woman denied re-employment after her breast breast

cancercancer was in remission. was in remission. – An individual refused an accommodation (short An individual refused an accommodation (short

breaks) on the basis of the fact that he had breaks) on the basis of the fact that he had diabetesdiabetes and needed to take insulin during the and needed to take insulin during the work day.work day.

INTRODUCTIONINTRODUCTIONSeries of court decisionsSeries of court decisions

– Restricted the broad scope of coverage Restricted the broad scope of coverage under the ADA;under the ADA;

– Interpreted the ADA strictly to create a Interpreted the ADA strictly to create a demanding standard to qualify as demanding standard to qualify as disabled;disabled;

– Diminished the civil rights protections of Diminished the civil rights protections of the ADA; andthe ADA; and

– Created a perverse Catch-22. Created a perverse Catch-22.


A broad-based coalition of A broad-based coalition of stakeholders and policymakers stakeholders and policymakers

agreed to work together to restore agreed to work together to restore protections under the ADA.protections under the ADA.

PURPOSES OF THE ADAAAPURPOSES OF THE ADAAAThe ADA Amendments Act of 2008 (ADAAA) The ADA Amendments Act of 2008 (ADAAA)

restores the original intent of the ADA by:restores the original intent of the ADA by:

Reinstating the broad scope of protection;Reinstating the broad scope of protection;

Moving the focus Moving the focus fromfrom the threshold issue of the threshold issue of disability disability toto the primary issue of discrimination; the primary issue of discrimination; andand

Reaffirming that although the definition of Reaffirming that although the definition of disability is intended to be broad, only those disability is intended to be broad, only those individuals who are qualified and can prove individuals who are qualified and can prove discrimination are entitled to relief.discrimination are entitled to relief.

The ADA accomplishes this intent by:The ADA accomplishes this intent by:

Retaining the existing definition of the term Retaining the existing definition of the term “disability” but clarifying the key words and phrases; “disability” but clarifying the key words and phrases;

Changing the structure of the law to focus on Changing the structure of the law to focus on discrimination; discrimination;

Including construction clauses to explain intent; Including construction clauses to explain intent;

Authorizing federal agencies to regulate the definition Authorizing federal agencies to regulate the definition of “disability”; andof “disability”; and

Including conforming amendments regarding Title V Including conforming amendments regarding Title V of the Rehabilitation Act.of the Rehabilitation Act.

PURPOSES OF THE ADAAAPURPOSES OF THE ADAAA

DEFINITION OF DISABILITYDEFINITION OF DISABILITY

The ADAAA retains without The ADAAA retains without amendment the existing definition amendment the existing definition of the term “disability” of the term “disability” butbut clarifies clarifies the key words and phrases in the the key words and phrases in the

definition.definition.

1010


The term “disability” means, with respect to an The term “disability” means, with respect to an individual—individual—

A A physical or mental impairmentphysical or mental impairment that that substantially limitssubstantially limits one or more one or more major life major life activitiesactivities of such individual (PRONG 1); of such individual (PRONG 1);

A A recordrecord of such an impairment (PRONG 2); of such an impairment (PRONG 2); or or

Being Being regardedregarded as having such an as having such an impairment (PRONG 3).impairment (PRONG 3).


PRONG 1 (Impairment)PRONG 1 (Impairment)

Key Components:Key Components:

Physical or mental impairment Physical or mental impairment

Substantially limits Substantially limits

Major life activities Major life activities


Physical or mental impairmentPhysical or mental impairment

Currently, Currently, nono definition of the phrase “physical definition of the phrase “physical or mental impairment” in the statute.or mental impairment” in the statute.

ADAAA does ADAAA does notnot add definition of the phrase to add definition of the phrase to the statute.the statute.

Legislative history explains that definition Legislative history explains that definition included in current regulations is appropriate. included in current regulations is appropriate. [28 CFR 36.104; 29 CFR 1630.2(h)(10-(2); 34 CFR [28 CFR 36.104; 29 CFR 1630.2(h)(10-(2); 34 CFR 104.3(j)(2)(i)] 104.3(j)(2)(i)]


Substantially LimitsSubstantially Limits

ADAAA:ADAAA:

Rejects standards adopted by courts and EEOC Rejects standards adopted by courts and EEOC (“prevent or severely restrict”) as “too demanding.”(“prevent or severely restrict”) as “too demanding.”

Directs courts and agencies to construe term Directs courts and agencies to construe term “broadly” and “without regard to the ameliorative “broadly” and “without regard to the ameliorative effects of mitigating measures.”effects of mitigating measures.”

Directs the courts and EEOC to view impairments Directs the courts and EEOC to view impairments that are “episodic” or “in remission” in their “active” that are “episodic” or “in remission” in their “active” state.state.


Major Life ActivitiesMajor Life Activities

Includes illustrative list of major life activities.Includes illustrative list of major life activities.

Specifies that major life activities includes major Specifies that major life activities includes major bodily functions.bodily functions.

Clarifies that individual may be limited in only one Clarifies that individual may be limited in only one major life activity.major life activity.


PRONG 2 (Record or History of PRONG 2 (Record or History of Impairment)Impairment)

No change to current law or regulatory No change to current law or regulatory interpretation.interpretation.


PRONG 3 (Regarded as having PRONG 3 (Regarded as having an impairment)an impairment)Individuals not subject to functional test.Individuals not subject to functional test.

Individual must prove adverse action taken because Individual must prove adverse action taken because of an actual or perceived impairment.of an actual or perceived impairment.

Does not include transitory and minor impairments.Does not include transitory and minor impairments.

Covered entities not required to make reasonable Covered entities not required to make reasonable accommodations or modifications.accommodations or modifications.

ADAAA CHANGES THE ADAAA CHANGES THE STRUCTURE OF THE ADASTRUCTURE OF THE ADA

Focus is on merits of the case i.e., Focus is on merits of the case i.e., whether a covered entity engaged whether a covered entity engaged in discrimination in discrimination on the basis of on the basis of disabilitydisability rather than threshold rather than threshold

question of whether the individual question of whether the individual was disabled.was disabled.

CONSTRUCTION CLAUSESCONSTRUCTION CLAUSES

Workers compensation and other Workers compensation and other disability benefit programs not disability benefit programs not affected.affected.

Fundamental alternation defense Fundamental alternation defense not affected.not affected.

Reverse discrimination claims not Reverse discrimination claims not authorized.authorized.

REGULATORY AUTHORITYREGULATORY AUTHORITY

ADAAA clarifies that the EEOC, ADAAA clarifies that the EEOC, DOJ, and DOT are authorized to DOJ, and DOT are authorized to issue regulations implementing issue regulations implementing

the definition of disabilitythe definition of disability

CONFORMING AMENDMENTSCONFORMING AMENDMENTS

ADAAA specifies that the meaning ADAAA specifies that the meaning given the term “disability” under given the term “disability” under

the ADA shall be used for the ADA shall be used for purposes of defining the term purposes of defining the term “disability” under Title V of the “disability” under Title V of the Rehabilitation Act of 1973, as Rehabilitation Act of 1973, as

amended.amended.

OVERVIEW OF THE ADA AMENDMENTS ACT OF 2008 Seventh Floor 1501 M Street, NW Washington, DC 20005...

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