The ADA Amendments Act: From Exclusion to Inclusion

1. The ADA Amendments Act:From Exclusion to Inclusion Michael K. Kirk Wyatt, Tarrant & Combs, LLP 500 W. Jefferson Street, Suite 2800 Louisville, Kentucky 40202 (502) 562-7306 mkirk@wyattfirm.com

2. When • The ADA Amendments Act – signed into law 9/25/08 • Becomes effective 1/1/09 (still covers employers of 15 or more) • First amendment since original enactment in 1990 – G.H.W. Bush

3. Why • Supreme Court rulings – Congress unhappy • Want a clue – look at the opening of the Act • “AN ACT To restore the intent and protections of the [ADA] of 1990”

4. Remember The Basics • The ADA protects qualified individuals with a disability in employment • The ADA prohibits discrimination in employment if: • you are a qualified individual with a disability (or regarded as such) • who can perform the essential functions of the job • with or without reasonable accommodation

5. Disability - Definition • 3 prongs of disability: • physical/mental impairment that substantially limits 1 or more major life activities • Having a record of such an impairment • Being regarded as having such an impairment

6. What The Supremes Said –“DISABILITY” • Toyota v. Williams -- Strict interpretation • “a physical or mental impairment that substantially limits one or more major life activities of such individual” • Substantially = considerable, not minor • Major = central to most people’s daily lives • To be substantially limited in performing a major life activity – must have impairment that prevents or severely restricts a person from doing activities that are of central importance to most people’s daily lives – if merely limiting, not protected

7. Williams Expressly Rejected by ADAAA • Amendment – substantially limits means “materially restricts” • “substantially limits” is more than moderate and less than serious • “substantially limits” = “materially limits” or “materially restricts” • Plus disability need not materially limit other activities • “a physical or mental impairment that [materially restricts] one or more major life activities of such individual”

8. Huh? • Get it? Clear as mud? • On top of that, the definition section states that to achieve the remedial purposes • The definition of disability “shall be construed broadly” – everybody in • Mandatory • Err on the side of considering plaintiff as disabled

9. Further Clarifications • Impairment that substantially limits one major life activity need not limit others to be considered a disability • “a physical or mental impairment that materially restricts one [OPTIONAL: or more] major life activity [OPTIONAL: activities] of such individual”

10. Further Clarifications – Part II • What if the impairment is episodic or in remission • Are you “disabled” during those time frames? • Yes, if that condition would substantially limit a major life activity when active • Ex. cancer – can go into remission • Ex. tuberculosis – can go into remission • Ex. seizures – can be episodic and unexpected

11. More Definitions Added – “Major Life Activities” Old • “functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

12. “Major Life Activities” (New) “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” (includes but not limited to) “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.”

13. Regarded As Claim – Expansion • Does not apply to transitory AND minor impairments • With an actual or anticipated duration of less than 6 months • ADA is designed to protect those discriminated against because of the negative attitudes of others toward them, whether or not they have a physical disability or mental impairment

14. Regarded As – Under the Existing Regulations • Has a physical or mental impairment that does not substantially limit major life activities but is treated having such a limitation • Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment • Has no impairments but is treated as having such an impairment

15. Regarded As – Amendments Individual establishes • that he/she has been subjected to an action prohibited by the ADA • because of an actual or perceived • physical or mental impairment • whether or not the impairment limits or is perceived to limit • a major life activity

16. Regarded As – Don’t Assume • Purpose to protect those who do not have a disability, but are assumed to, or those who do not have a disability which limits a major life activity, but are assumed to • If you discriminate based upon perceptions and assumptions that are incorrect, the employee is protected even if otherwise not covered by ADA prongs 1 and 2

17. Regarded As--BUT Not Entitled To • One key element of the amended “regarded as” piece • Just because someone can prove they are regarded as: • Does not obligate employer or those who provide public accommodation • To provide a reasonable accommodation to that person • Need not accommodate non-existent disability • Nor reasonable modification to policies, practices or procedures

18. Regarded As–Don’t Ask and Hope They Don’t Tell • Gray area • Some cases say you should recognize disabilities • Ex. someone who suddenly changed behavior • sleeping on the job • temper tantrums • But if you even hint that you suspect, helps prove their case

19. What The Supremes Said–Another Case Sutton v. United Airlines – balance substantially limits versus mitigating measures In other words: If you can neutralize a disability with medication or a device -- YOU ARE NOT DISABLED – Ta da!

20. What The Supremes Said – Another Case (continued) Examples: • Glasses (if glasses improve vision, not substantially limited) • Blood pressure medication • Hearing aid

21. Mitigating Measures – Almost Gone One significant change – prohibited from considering mitigating measures • Determination of whether impairment substantially limits a major life activity • SHALL be made without regard to mitigating measures • Except glasses and contacts Otherwise – cannot consider meds and devices

22. Fascinating Exercise, Mike – But What Should I Do? • Be prepared to change you analysis – focus shift to employer • If someone asks for accommodation, assume they are disabled • Initiate the accommodation discussion • Consult with your legal advisor if you question the disability • Expect more requests for accommodation

23. What Else Should I Do? Train your managers on the basics of the ADA Train them to send folks who request accommodations to HR Train them on the concept of regarded as, don’t ask Being concerned could get company hit with regarded as claim Don’t joke about differences • limp (Hey Hop Along) • vision (Nice catch Eagle Eyes) Train them to documents information and requests

24. Anything Else? • Yes – the EEOC is authorized to issue new regulations • Be on the lookout for the new regs • Review them with your legal advisor • Train your supervisors and managers on the basics of the regs

25. Employers Used To Win, The Dynamic Is Likely To Change In the past employers won most ADA cases The major issue was whether plaintiff was disabled and mitigation of disability Now worry about what YOU are doing • Are your job descriptions up-to-date • Did you receive a request for accommodation (supervisor?) • Did you respond and engage in dialogue • Did you offer reasonable accommodation

26. The ADA Amendments Act: From Exclusion to Inclusion Michael K. Kirk Wyatt, Tarrant & Combs, LLP 500 W. Jefferson Street, Suite 2800 Louisville, Kentucky 40202 (502) 562-7306 mkirk@wyattfirm.com