The ADA Amendments Act of 2008 What it Means for our Practice

1. The ADA Amendments Act of 2008 What it Means for our Practice Utah AHEAD Fall 2008 Conference October 8, 2008 Presented by Michael Brooks, Ph.D., J.D.

2. Learning Goals • The goals of this presentation are: • to understand the principles of the original Americans with Disabilities Act (ADA) of 1990 • to understand what has occurred to necessitate the Amendments Act • to understand the new law • to understand how this law might apply to our practice

3. The Original ADA • Passed in 1990 because Congress noted that 43 million Americans had disabilities and no legal redress to combat the discrimination they experienced. The ADA was designed to provide a “clear and comprehensive national mandate” to eliminate such discrimination. • Defined disability as a (1) physical or mental impairment that substantially limits one or more of the major life activities of such an individual (2) a record of such impairment or (3) being regarded as having such an impairment.

4. ADA Provisions-Title I • Title I: Employment • covered employers have 15 or more employees for each working day • General Rule: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application, procedures, etc. • Employers must provide reasonable accommodations to qualified individuals with disabilities unless such accommodations constitute an undue burden.

5. ADA Provisions – Title II • Title II: Public Services by State and Local Governments - General Rule: no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. - Application: public buildings and transportation must be accessible

6. ADA Provisions – Title III • Title III: Public Accommodations and Services Operated by Private Entities • General Rule: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. • covered entities include (among others): restaurants, hotels, cinemas, zoos, and shoe repair facilities

7. Title III - Continued • private entities have to make reasonable modifications in policies, facilities, etc. unless such modifications would constitute an undue burden or fundamentally alter the service offered (question re: closed captioning in a cinema). • exemptions exist for private clubs and religious organizations

8. ADA Provisions – Title IV • Title IV: Telecommunications • major thrust is to allow enhanced communication for hearing and speech impaired individuals via: • telecommunications relay services (e.g., TDD) - closed captioning of public service announcements

9. ADA Provisions – Title V • Title V: Miscellaneous Provisions • individuals with disabilities have the right to refuse accommodations • no state immunity • no retaliation/coercion • discusses exempted conditions (transvestism, kleptomania, etc.)

10. What Happened? • The Supreme Court began chipping away at the ADA through various holdings, referred to as the “Sutton Trilogy.” • Sutton et al. v. United Airlines (June 22, 1999) • Petitioners were severely myopic twin sisters w/uncorrected vision of 20/200 or worse • With corrective measures, their sight was normal • They applied to be pilots

11. Sutton, cont. • Their applications were rejected because they didn’t meet UA’s criteria of having uncorrected visual acuity of 20/100 or better • Suttons filed suit under ADA • Both District Court and 10th Circuit Court held that Suttons weren’t disabled because they could correct their deficits and that (2) UA didn’t regard them as disabled, just unable to work as global airline pilots

12. Sutton, US Supreme Court Holding • The SC held: • The determination whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment • The ADA is properly read as requiring that a person be presently–not potentially or hypothetically–substantially limited in order to demonstrate a disability. A “disability” exists only where an impairment “substantially limits” a major life activity, not where it “might,” “could,” or “would” be substantially limiting if corrective measures were not taken. • Case-by-case basis also argues for taking mitigation into effect-otherwise, people are lumped together based on disability type

13. Sutton, Synopsis • The employer rejects the applicant because of the condition in the unmitigated state and succeeds in defeating ADA coverage because of the applicant's condition in it's mitigated state. • In a case unrelated to Sutton, a plaintiff with cancer brought an ADA claim against his employer then died before the case was resolved. He was told (posthumously) that the condition that killed him wasn’t a disability. (Hirsch v. National Mall & Serv., Inc. [1997])

14. Sutton, Part II • Murphy v. United Parcel Service (1999) • Vaughn Murphy fired from job as driver/mechanic at UPS because of hypertension. His blood pressure was too high and precluded DOT certification. • USSC held that because of his medication he was not disabled. It also held that he wasn’t “regarded as” disabled, but merely thought by UPS to be unable to hold his job due to DOT regulations.

15. Sutton, Part III • Albertsons Inc. v. Kirkingburg (1999) • Kirkingburg had monocular vision but was erroneously tested as meeting DOT’s vision standard. • He was retested 2 years later and correctly id’d as not meeting the standard and was fired. • USSC stated that he was not substantially limited in seeing, that a difference in his sight did not necessarily translate into a substantial limitation, and that his brain’s compensating for his monocularity was a form of mitigation. • Thus, he could not sue successfully under ADA

16. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams • Decided January 8, 2002 • Automobile assembly line worker develops carpal tunnel syndrome and sues Toyota for failure to provide reasonable accommodation • Lower court held she was substantially limited in the major life activity of repetitive manual tasks needed for her job • USSC reversed, holding that lower court made an improper analysis of major life activities. She could still use hands for personal hygiene, household chores. • MLAs must be activities that are of central importance to most people’s daily lives • The impairment must also be permanent or long-term

17. Toyota, Synopsis • The definition of disability "needs to be interpreted strictly to create a demanding standard for qualifying as disabled.” 

18. The Need for Amendment • The Sutton Trilogy and Toyota decisions had circumscribed the ADA so much that the legislature had to refine the law to discourage such a narrow interpretation and application from the courts. • Also, the US Supreme Court employed an odd approach in using a narrow definition of disability in deciding cases, as a longstanding legal canon of construction is that remedial statutes like ADA should be interpreted broadly.

19. The ADA Amendments Act(aka Public Law No:110-325) • Signed into law by President Bush on September 25th • It will become effective January 1, 2009 • It retains the 3-pronged definition of disability from the original ADA. • What’s changed?

20. ADA Amendments Act – How Does it Read and What Does it Do? It begins: “An Act to restore the intent and protections of the Americans with Disabilities Act of 1990.” • Senator Tom Harkin, one of the major sponsors of the bill, noted, “This bill better defines who Congress intends to meet the qualification of disabled…this bill returns the focus of the ADA to where it was meant to be –on whether a person with a disability is being discriminated against.” • In prior cases, the focus was on class membership –”Is the individual disabled?”

21. ADA Amendments – Findings and Purposes Findings • Congress thought ‘disability’ would be interpreted under ADA as it had been under the Rehabilitation Act of 1973, but this hasn’t happened. • Sutton and related cases narrowed disability protections too much • Toyota raised the bar of “substantial limitation” higher than intended by Congress • Congress believed that the EEOC ADA regulations equating “substantially limited” as “significantly restricted” expressed too high of a bar for legal protection

22. ADA Amendments – Findings and Purposes Purposes • Rejection of the requirement to consider disability with regard to mitigating measures (aka reject Sutton) • Rejection of Sutton reasoning with regard to the 3rd prong of the definition of disability (Regarded as) and replacement with a broad view as seen in the Arline case (1987).

23. Purposes, Cont. c) Rejection of the Toyota requirement of a ‘demanding standard for qualifying as disabled.’ d) To convey that Toyota’s “substantially limits” criteria is too strict. Congress wants courts to focus on 2 issues: (1) whether entities under ADA have complied with their obligations and (2) don’t use extensive analysis in determining if an impairment is a disability

24. ADA-AA: Major Life Activities • Recall that ADA-AA retains 3-pronged definition of disability • However, it provides guidance as to major life activities (MLAs): include but aren’t limited to: • caring for oneself--manual tasks--seeing—hearing—eating—sleeping—walking—standing—lifting—bending—speaking—breathing—learning—reading—concentrating—thinking– communicating—working

25. ADA-AA: Major Life Activities • MLAs also include 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 • MLAs used to be determined by courts, as a list wasn’t included in the original ADA. EEOC provided a brief list, but it wasn’t comprehensive

26. ADA-AA: ‘Regarded As’ Prong • Individual will be regarded as having an impairment if it is established that s/he has been subjected to a prohibited action because of actual or perceived impairment whether or not the impairment limits or is perceived to limit an MLA. In English: individual with disability doesn’t have to prove their employer/school believed they were limited in a major life activity to seek redress. • Doesn’t apply if impairment is transitory (6 months or less). This only applies to impairments that are “regarded as” a disability. New law doesn’t address transitory aspect for 2 other prongs, and Toyota held that impairment must be permanent or long term.

27. ADA:AA – “Regarded As” • The Amendments clarify that someone ‘regarded as’ disabled is protected from discrimination but is not entitled to accommodations.

28. ADA:AA-How Definition is Constructed • “The definition of disability…shall be construed in favor of broad coverage” • Only need substantial limitation in one MLA to be considered disabled. The impairment need not limit other MLAs in order to qualify • “Substantially limits” means “materially restricts” an MLA, not “prevents or severely restricts” an MLA • “An impairment that is episodic or in remission is a disability if it would substantially limit an (MLA) when active.” This is change in that it invites hypothetical inquiries

29. ADA:AA – Substantial Limitation • Under legal holdings from original ADA, assessing whether someone was ‘substantially limited’ was done using the an ‘ultimate outcome’ type of analysis. • Now, the emphasis is on the conditions, manner, and duration under which an individual can undertake an activity, NOT the ultimate performance outcome.

30. ADA:AA – Construction, Cont. • As stated, disability is assessed without regard to mitigating measures, including: • Medication • Medical supplies, equipment, or devices • Low vision devices (NOT ordinary glasses/lenses) • Prosthetics • Hearing aids • Mobility devices • Use of assistive technology • Reasonable accommodations • Learned behavior or adaptive neurological modifications • You CAN assess mitigating effects of glasses/contacts • “Interacting with others” as an MLA isn’t addressed (although communication is) – this is major omission as courts deal with this issue often in disruptive behavior cases

31. ADA:AA - Discrimination • Discrimination is illegal under the new law if done “on the basis of disability” as opposed to “because of the disability of such individual.” • This shifts the focus from a threshold question of whether one is disabled to the substantive question of the treatment of the individual.

32. How Does This Affect Our Practice? • We should see an increase in the number of individuals seeking reasonable accommodations-Congress intended this. • Under the new law the focus is shifting from documentation of formal evidence of disability to supporting the need for requested accommodations (AHEAD website).

33. Practice, Cont. • Documentation requirements will now need to focus on the following: • The effectiveness of formal and informal accommodations • Adaptive strategies • Self-report/Intake interviews • Observational and narrative evaluations from past teachers • National AHEAD recommends consulting Best Practices: Disability Documentation in Higher Education and The Structured Interview as Documentation (on their website)

34. Practice, Cont. • Programs still don’t have to alter fundamental aspects of their course of study. • Reasonable accommodations should still be analyzed through the Wynne v. Tufts University analysis. This analysis answers whether an accommodation would lower academic standards or fundamentally alter a program of study. • officials w/relevant duty/experience consider the accommodation request • consider the impact of the request on the program and the availability of alternatives • make a justifiable conclusion that available alternatives would lower standards or substantially alter the program

35. Practice, Cont. • Hypotheticals: Student has diagnosis of ADHD – completely controlled with medications – disabled? What if they’ve ‘grown out’ of ADHD? Student with Bipolar Disorder – no manic or depressive episodes in years. Disabled? Learning Disorder is being considered, but student’s transcript is straight A’s. Possibly disabled?

36. Resources The ADA-AA: http://thomas.loc.gov/cgi-bin/query/C?c1100V6V6o Applications for the ADA-AA in our practice: http://www.ahead.org/resources/ada-restoration-act Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008 by Alex B. Long 103 Northwestern University Law Review Colloquy_(2008) – in press This Friday October 10th: 11-12:30 Eastern – AHEAD audio conference: “Congressional Reset of the ADA: How will the ADA Amendments Affect Your Policy and Practice?” by Scott Lissner

37. Conclusion Questions?