The ADAAA -MSATC09
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Transcript of The ADAAA -MSATC09
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RecoverinRecoverin
g Lostg LostGround!Ground!
The ADAThe ADAAmendmentsAmendments
Act of 2008Act of 2008Presented by
Don Brandon
DBTAC Northwest
&
Jason Burke
State ADA Coordinator
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Appraisal of How Civil Rights LawsAre Formulated
How The Definition of Disability
Was Built ADA 1990 & 1991 Changes
The Supreme Court Decisions That
Narrowed Protections ADAAA 2008 Definition of DisabilityTune-Up
Practical Impact on Human
Resources Management
AGENDAAGENDA
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INTRODUCTIONINTRODUCTION
The ADA Is A CivilRights Law.
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ADAs PurposeADAs Purpose
The ADA Was Supposed To
Focus Primarily On WhetherA Covered Entity Engaged InDiscrimination On The Basis
Of Disability; Not Require AnExtensive Analysis
Regarding The Nature Of The
Individuals Disability.
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Civil Rights Laws are FormulaCivil Rights Laws are Formula
DrivenDriven
X + Y - 2 = 10
6 + 6 - 2 = 10
7 + 5 - 2 = 10
9 + 3 - 2 = 10
8 + 4 - 2 = 10
Reasonable
Accommodation
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FF
airair
SaSa
meme
Reasonabl
e
Reasonabl
e
Accomm
oda
tion
Accomm
oda
tion
Es
sentialFun
ctio
n
EssentialFun
ctio
n
Program
Modific
ati
on
Program
Modific
ati
on
Indiv
idual/Ca
se-by-
Indiv
idual/Ca
se-by-
Case
Case
Wom
en
Wom
en
Mino
rities
Mino
rities
Religio
usGro
ups
Religio
usGroups
Wo
rkers
Comp
Wo
rkersC
omp
EQUALITYEQUALITY
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General Rule The ADAAAGeneral Rule The ADAAA
It is Against the Law to
Discriminate Against a
Qualified Individual on the
Basis of Disability, Who can
Perform the Essential
Functions of a Job, With or
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GR + (CUH [+ or -] CDT)
= GFC
EO
ADA FormulaADA Formula Not What to ThinkNot What to Think But How to ThinkBut How to Think
ProcessProcess To Create EqualTo Create Equal
OpportunityOpportunity
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(Old Definition Of Disability)
A Pers on W ith ADisability is:
Someone -with... a physical or
mental impairment, that
substantially limitsa major life
activity.
Someone who -has a record of...
Someone who - is regarded as...
ADA
FMLA
WC
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Substantial LimitationSubstantial Limitation
When an Impairment
Prevents an Individual from
Performing a MLA orSignificantly Restricts the
Condition, Manner, or
Duration Under Which anIndividual can Perform a
MLA, as Compared to the
Average Person in the
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EEOC Regulations Of 1991EEOC Regulations Of 1991 Created Higher
Threshold forDisability
Substantial
Mitigating MeasuresNot A Factor
Sutton TrilogyRemoved Mitigation
Measures & MadeThem A Factor
8 Major Life Activities - Not ExhaustiveList
Determination of Disability An
Employer Decision
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SupremeSupreme
CourtCourt
Changes toChanges toDefinitionsDefinitions
SuttonTrilogyToyota v
Williams
Not Disabled
Enough
DisabilityDiscriminationRarely Explored
16 Examples
Case Scenarios
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Impact of Supreme CourtImpact of Supreme Court
DecisionsDecisions Penalized For
SuccessfulManagement of
Disability
DisabilityDiscrimination
Rarely Explored
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ADA Definition 1990ADA Definition 1990
Congress Modeled After After 504Case law
Functional Definition With 3 Prongs
Practically - Was A ManageableDefinition
Legally - Definition Was Vulnerable
Denial of Disability in Society
Framework for Interpreting DisabilityLaw Based in Worker Comp & SocialSecurity
EEOC Guidance on Substantial
Limitation Followed National Mores
I f S C
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Impact of Supreme CourtImpact of Supreme Court
Ruling & MitigatingRuling & Mitigating
Measures (Sutton v UA)Measures (Sutton v UA)
Orr v. Wal Mart
Todd v .Academy Corp
Epstein v Kalvin-Miller INC
Eckhaus v. Consolidated Rail
Corp
Schriner v. Sysco Food Serv.
McMullin v. Ashcroft
preme o rt R ng To ota spreme o r ng o o a s
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upreme ourt Ru ng Toyota vsupreme our u ng oyo a vsWilliams)Williams)
Of Substantial Limitation On MajorOf Substantial Limitation On Major
Life ActivityLife Activity Mclure v. GM Corp
EEOC v. Sara Lee Corp
Williams v. Cars CollisionCtr.
Phillips v. Wal Mart Inc
Tockes v. Air-land Transport
Pimentaal v. Dartmouth-Hitchcock Clinic
Didier v. Schwan Food Co.
Littleton V. Wal Mart
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Orr v. Wal Mart
Todd v .AcademyCorp
Epstein v Kalvin-Miller INC
Eckhaus v.Consolidated RailCorp
Schriner v. SyscoFood Serv.
McMullin v. Ashcroft
Mclure v. GM Corp
EEORC v. Sara LeeCorp
Williams v. CarsCollision Ctr.
Phillips v. Wal MartInc
Tockes v. Air-landTransport
Pimentaal v.
Dartmouth-
16 Court Cases That DemonstrateFailure of Legal Construct of ADA
DD of 1990
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Why Was
TheADAAANeeded?
Courts NarrowedCourts Narrowed
DefinitionDefinition
ADAADA
Revised Definition ofRevised Definition of
DisabilityDisability
ADAAAADAAA
Definition of DisabilityDefinition of Disability
Congress ActedCongress Acted
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THE ADAAA Restores TheTHE ADAAA Restores The
Original Intent Of The ADA ByOriginal Intent Of The ADA By
Reinstating The Broad Scope Of
Protection; Moving The Focus From The
Threshold Issue Of Disability To
The Primary Issue OfDiscrimination; And
Reaffirming That Although TheDefinition Of Disability IsIntended To Be Broad Onl
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ADAAA Changes TheADAAA Changes The
Structure Of The ADAStructure Of The ADADefinition of DisabilityDefinition of DisabilityFocus Is On Merits Of The
Case I.E., Whether A CoveredEntity Engaged InDiscrimination Against A
Qualified Individual On TheBasis Of Disability RatherThan Threshold Question Of
Whether The Individual Was
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Retaining The Existing Definition Of TheTerm Disability But Clarifying The KeyWords And Phrases;
Changing The Structure Of The Law ToFocus On Discrimination;
Including Construction Clauses To ExplainIntent;
Authorizing Federal Agencies To RegulateThe Definition Of Disability; And
Including Conforming AmendmentsRegarding Title V Of The Rehabilitation Act.
PURPOSES OF THE ADAAAPURPOSES OF THE ADAAA
i h i biliA P With A Di bilit
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A Person With A DisabilityA Person With A Disability
Is:Is:
FMLA
ADA
WC
Someone:with
a physical or
mentalimpairmentthatsubstantiallylimits a majorlife activity.
has a record of
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DEFINITION OF DISABILITYDEFINITION OF DISABILITYPRONG 2 (Record Or
History Of Impairment) No Change To Current Law Or
Regulatory Interpretation.
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DEFINITION OF DISABILITYDEFINITION OF DISABILITYPRONG 3 (Regarded AsHaving An Impairment)
Individuals Not Subject To Functional Test.
Individual Must Prove Adverse Action TakenBecause Of An Actual Or Perceived
Impairment. Does Not Include Transitory And Minor
Impairments.
Covered Entities Not Required To Make
Reasonable Accommodations Or
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CONSTRUCTION CLAUSESCONSTRUCTION CLAUSESWorkers Compensation And
Other Disability Benefit
Programs Not Affected.Fundamental Alteration
Defense Not Affected.
Reverse DiscriminationClaims Not Authorized.
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Re-Expansions Of Definition ofRe-Expansions Of Definition of
Disability (DD) Via ADAAADisability (DD) Via ADAAA
More Like Civil Rights Act, OnlyAffected the DD
Retains Same Wording in Definitionof Disability
Redefines Or Sets New Parameterson How DD to Be Interpreted
17 Major Life Activities & 9 BodilyFunctions
Corrective Vision Not CoveredUnless
Mitigation Measures Not To BeConsidered
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ActivitiesActivities
Learning Thinking
Concentrating
Interactingwith Others
Caring for
Oneself Speaking
Performing
Manual
Walking Seeing
Breathing
Hearing Sleeping
Working
Not an ExhaustiveList
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FunctionsFunctions
Functions of: The Immune System,
Normal Cell Growth,
Digestive,
Bowel, Bladder,
Neurological, Brain,
Respiratory, Circulatory,
Endocrine And Reproductive
Functions
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Substantial LimitationSubstantial Limitation
RedefinedRedefined
New Boundaries LessRestrictive Qualification of
Disability Corrected Supreme Court
Cases
Corrected or Lowered theEEOC Bar for Substantial
Almost Regulatory in Scope
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Impact EmploymentImpact Employment
PolicyPolicy
and HR Managementand HR Management Less Diagnostic Measurement
by Employer and the Courts
Focus on Discrimination ofQualified individuals andRefusal To Accommodate
Understanding ReasonableAccommodation (RA) As aProcess
Interactive Process and The RA
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Major Life Activities &Major Life Activities &
Bodily FunctionsBodily Functions Dont Be Frightened by the
List
ADA Always Intended BroadCoverage
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Old 3 Part Test - New 4Old 3 Part Test - New 4
Part TestPart Test
ADA 1990 Courts Used a 3 PartTest
1. Physical or Mental Impairment
2. Substantial Limitation3. Major Life Activates
ADA AA 2008 Courts Will Use A 4Part Test
1. Evidence Of Membership In aProtected Class
2. Sub ected To Adverse Em lo ment
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What This Means forWhat This Means for
EmployersEmployers Organizations That Have Been Complying
With The Original Intent Of The ADA WillLikely Be Unaffected Since The ADAAAMerely Restores That Original Intent AndMore Clearly Defines Disability.
Existing Policies And Procedures, IncludingWritten Ones, Should Be Reviewed AndUpdated To Ensure They Are In ComplianceWith The ADA andd This Act, Especially
Given That More Conditions Are NowExplicitly Considered Disabilities.
Reasonable Accommodations Are OnlyRequired To Be Provided To Individuals
Who Have, Either Currently Or A Record Of,
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FINAL THOUGHTS FORFINAL THOUGHTS FOR
EMPLOYERSEMPLOYERS
Treat all employees with dignity andrespect
Recognize that the definition ofdisability is broad but only qualifiedindividuals who can provediscrimination are entitled to relief
Adopt an interactive process Train and retrain all staff
Develop disability expertise
Document decisions
HR I t i El t f
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ID Essential Functions
of the Job
Interaction with
Employee
Consideration of ADA
Qualifying Event
Consideration of
Affordability & Impact
On Workplace
Problem Resolution of
RA
HR Intensive Elements ofGood Faith
Wh t Thi M fWh t Thi M f
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What This Means forWhat This Means for
Individuals and EmployeesIndividuals and Employees
with Disabilitieswith Disabilities Overall, The ADAAA Will RestoreProtections Against DisabilityDiscrimination To A Broader Range Of
Individuals Including Those WithMental Illness, Epilepsy, MuscularDystrophy, Cancer, Diabetes,Cerebral Palsy And Perceived
Disabilities. Substantially Limits Now Needs To Be
Interpreted Less Severely WithRegards To Effect On A Major Life
Activity.
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FINAL THOUGHTS FORFINAL THOUGHTS FOR
INDIVIDUALS WITHINDIVIDUALS WITHDISABILITIESDISABILITIES
Know Your Rights AndResponsibilities
Pursue Jobs For Which You Are
Qualified Engage In An Interactive Process
Document Your Qualifications
And Adverse Actions Taken By
y asy as
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EEOC & Courts NarrowedEEOC & Courts NarrowedDefinitionDefinition
Revised How DefinitionRevised How Definitionof Disability To Beof Disability To Be
InterprettedInterprettedADAAAADAAA
Definition of DisabilityDefinition of Disability
Congress ActedCongress Acted
y asy asThe ADAAAThe ADAAA
Needed?Needed?
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ResourcesResources
DBTAC Northwest
800-949 4232
www.dbtacnorthwest.org
Job Accommodation
Network (JAN)800-526-7234
www.jan.wvu.edu
http://www.dbtacnorthwest.org/http://www.jan.wvu.edu/http://www.jan.wvu.edu/http://www.dbtacnorthwest.org/ -
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Thank You
Wh t N O Diff tWh t N O Diff t
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Whats New Or DifferentWhats New Or Different
About The Definition OfAbout The Definition Of
DisabilityDisability
The ADAA Retains Without
Amendment The ExistingDefinition Of The Term
Disability But Clarifies
The Key Words AndPhrases In The Definition.
41
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StateState
TheDefinitionofDisabilityis Broaderthan inthe ADA
Temporary Conditions are Covered
A Condition Does Not Have to Impact a Major Life Activity
A Condition Does Not Have to be Substantially Limiting