Changing Currents in Changing Currents in Employment LawEmployment Law

Lily Garcia Lily Garcia Employment Practices Solutions, Inc. and Of Employment Practices Solutions, Inc. and Of Counsel at Lippman, Semsker & Salb, LLCCounsel at Lippman, Semsker & Salb, LLC

R. Scott OswaldR. Scott OswaldThe Employment Law GroupThe Employment Law Group®® Law Firm Law Firm

The ADA Amendments Act of 2008

D.C. Bar CLE - June 18, 2009

BackgroundBackground

ADA Amendments Act of 2008, ADA Amendments Act of 2008, PL 110-325, 2008 S.3406, PL 110-325, 2008 S.3406, became effective on January 1, became effective on January 1, 2009 2009 – ADAAA passed the House on June ADAAA passed the House on June

25, 2009 by a vote of 402-1725, 2009 by a vote of 402-17– Senate bill passed Senate bill passed unanimouslyunanimously

on September 11, 2008on September 11, 2008

Purposes of ADAAAPurposes of ADAAA

To reinstate broad scope of To reinstate broad scope of protection under the ADA protection under the ADA

To abandon current standards in To abandon current standards in determining whether a person is determining whether a person is covered under the ADA covered under the ADA

To adopt less restrictive To adopt less restrictive interpretations of the ADA’s definition interpretations of the ADA’s definition of disability “in favor of broad of disability “in favor of broad coverage of individuals . . . to the coverage of individuals . . . to the maximum extent permitted”maximum extent permitted”

ADAAA Broadens ADAAA Broadens Definition of “Disability”Definition of “Disability”

ADAAA broadens the definition of ADAAA broadens the definition of “disability” by:“disability” by:– Redefining the meaning of the term Redefining the meaning of the term

“substantially limits”“substantially limits”– Amending the “regarded as” prong of the Amending the “regarded as” prong of the

disability definitiondisability definition– Amending the list of activities that Amending the list of activities that

constitute “major life activities” constitute “major life activities”

Definitional AmendmentsDefinitional Amendments

Substantially LimitsSubstantially Limits– In In Toyota Motor Mfg., Kentucky, Inc. v. WilliamsToyota Motor Mfg., Kentucky, Inc. v. Williams, 534 , 534

U.S. 184 (2002), the Supreme Court stated that the U.S. 184 (2002), the Supreme Court stated that the ADA creates “a demanding standard for qualifying as ADA creates “a demanding standard for qualifying as disabled” disabled”

– This led to absurd resultsThis led to absurd results:: Littleton v. Wal-Mart Stores, Inc.Littleton v. Wal-Mart Stores, Inc., 2007 WL 1379986 , 2007 WL 1379986

(11th Cir. 2007)(11th Cir. 2007) (mental retardation not substantially (mental retardation not substantially limiting)limiting)

Ogborn v. United Food and Commercial Workers Union, Ogborn v. United Food and Commercial Workers Union, Local No. 881 Local No. 881 ,, 305 F.3d 763 (7th Cir. 2002) 305 F.3d 763 (7th Cir. 2002) (depression not substantially limited because episodic)(depression not substantially limited because episodic)

Pimental v. Dartmouth-Hitchcock Clinic Pimental v. Dartmouth-Hitchcock Clinic , 236 F. Supp. , 236 F. Supp. 2d 177 (D.N.H. 2002) (cancer not substantially limiting 2d 177 (D.N.H. 2002) (cancer not substantially limiting because of temporary nature of condition) because of temporary nature of condition)

Definitional AmendmentsDefinitional Amendments

Substantially limits Substantially limits – ADA AA rejects the Supreme Court’s narrow ADA AA rejects the Supreme Court’s narrow

interpretation of the phrase “substantially limits” in interpretation of the phrase “substantially limits” in ToyotaToyota, which required an individual to have an , which required an individual to have an impairment that prevented or severely restricted impairment that prevented or severely restricted that individual from doing activities central to most that individual from doing activities central to most people’s daily livespeople’s daily lives

– ADA AA does not specifically define “substantially ADA AA does not specifically define “substantially limits” but directs courts and the EEOC to interpret limits” but directs courts and the EEOC to interpret the phrase broadly, i.e., to revise the portion of its the phrase broadly, i.e., to revise the portion of its current regulations that improperly defines the term current regulations that improperly defines the term “substantially limits” as “significantly restricted as “substantially limits” as “significantly restricted as to … particular major life activity” to be consistent to … particular major life activity” to be consistent with this Act, including the amendments made by with this Act, including the amendments made by this Act. this Act.

Definitional AmendmentsDefinitional Amendments

ADA AA clarifies that an impairment that is ADA AA clarifies that an impairment that is episodic or in remission is a disability under episodic or in remission is a disability under the ADA if it “would substantially limit a major the ADA if it “would substantially limit a major life activity when active.”life activity when active.”

ADA AA clarifies that an employee need not ADA AA clarifies that an employee need not prove that she was discriminated against prove that she was discriminated against because she was “regarded as” having an because she was “regarded as” having an impairment that is “substantially limiting” impairment that is “substantially limiting”

ADA AA reiterates that an impairment need ADA AA reiterates that an impairment need only limit only limit oneone major life activity major life activity

ADA AA expands definition of “major life ADA AA expands definition of “major life activity” to include any “major bodily activity” to include any “major bodily function”function”

Definitional Amendments Definitional Amendments - Major Life Activities - Major Life Activities

Definitional AmendmentsDefinitional Amendments

Definitional AmendmentsDefinitional Amendments

Definitional AmendmentsDefinitional Amendments

Definitional AmendmentsDefinitional Amendments

Mitigating Measures Mitigating Measures – In In Sutton v. United Airlines, IncSutton v. United Airlines, Inc., 527 U.S. 471 ., 527 U.S. 471

(1999), the Supreme court held that whether (1999), the Supreme court held that whether an individual is disabled is viewed through the an individual is disabled is viewed through the lens of the “measures that mitigate the lens of the “measures that mitigate the individual’s impairment.”individual’s impairment.”

Orr v. Wal-Mart Stores, Inc.Orr v. Wal-Mart Stores, Inc., , 297 F.3d 720 (8th Cir. 297 F.3d 720 (8th Cir. 2002) 2002) (diabetes not a disability due to mitigating (diabetes not a disability due to mitigating measures)measures)

McClure v. Gen. Motors Corp., McClure v. Gen. Motors Corp., 570 N.E.2d 1322 570 N.E.2d 1322 (muscular dystrophy not a disability because (muscular dystrophy not a disability because plaintiff “has successfully learned to live and work plaintiff “has successfully learned to live and work with his disability, and to adapt himself with his disability, and to adapt himself accordingly”)accordingly”)

Definitional AmendmentsDefinitional Amendments

Mitigating Measures Mitigating Measures – ADA AA ADA AA eliminates the effects of mitigating measures eliminates the effects of mitigating measures

in determining whether an individual has a disabilityin determining whether an individual has a disability– The ADA AA (S 3406)The ADA AA (S 3406): “to reject the Supreme : “to reject the Supreme

Court’s reasoning in Court’s reasoning in Sutton v. United Air Lines, Inc.Sutton v. United Air Lines, Inc., , 527 U.S. 471 (1999) with regard to coverage under 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in reinstate the reasoning of the Supreme Court in School Board of Nassau County v. AirlineSchool Board of Nassau County v. Airline, 480 U.S. 273 , 480 U.S. 273 (1987) which set forth a broad view of the third prong (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation of the definition of handicap under the Rehabilitation Act of 1973Act of 1973

Definitional AmendmentsDefinitional Amendments

Mitigating Measures Mitigating Measures – In the Wake of the ADA AA the “primary In the Wake of the ADA AA the “primary

object of attention in cases brought object of attention in cases brought under the ADA should be whether entities under the ADA should be whether entities covered under the ADA have complied covered under the ADA have complied with their obligations, and to convey that with their obligations, and to convey that the question of whether an individual’s the question of whether an individual’s impairment is a disability under the ADA impairment is a disability under the ADA should not demand extensive analysis.should not demand extensive analysis.””

Definitional AmendmentsDefinitional Amendments

Mitigating Measures Mitigating Measures – When determining whether an impairment When determining whether an impairment

substantially limits a major life activity it shall do so substantially limits a major life activity it shall do so “without regard“without regard to the ameliorative effects of to the ameliorative effects of mitigating measures,” such as: mitigating measures,” such as:

medication, medical supplies, equipment, or appliances, low medication, medical supplies, equipment, or appliances, low vision devices (which do not include ordinary eyeglasses or vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.learned behavioral or adaptive neurological modifications.

RetroactivityRetroactivity

ADA AA is retroactive where the employee is ADA AA is retroactive where the employee is seeking prospective injunctive relief seeking prospective injunctive relief – Jenkins v. Nat’l Bd. of Med. Examiners, Jenkins v. Nat’l Bd. of Med. Examiners, 2009 WL 331638 2009 WL 331638

(6th Cir. Feb. 11, 2009); but see (6th Cir. Feb. 11, 2009); but see EEOC v. Agro Distrib., EEOC v. Agro Distrib., LLCLLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009); , 555 F.3d 462, 469 n. 8 (5th Cir.2009); Moran v. Moran v. Premier Educ. GroupPremier Educ. Group, LP, 599 F.Supp.2d 263, 2009 WL , LP, 599 F.Supp.2d 263, 2009 WL 507505, at *7 (D.Conn.2009); 507505, at *7 (D.Conn.2009); Schmitz v. LouisianaSchmitz v. Louisiana, 2009 , 2009 WL 210497 (M.D.La. Jan. 27, 2009) (citing WL 210497 (M.D.La. Jan. 27, 2009) (citing Rudolph v. Rudolph v. U.S. Enrichment Corp., IncU.S. Enrichment Corp., Inc., 2009 WL 111737 (W.D.Ky., ., 2009 WL 111737 (W.D.Ky., Jan. 15, 2009). Jan. 15, 2009).

Questions?Questions?

For further information, contact: For further information, contact:

R. Scott Oswald R. Scott Oswald The Employment Law GroupThe Employment Law Group®® Law Firm Law Firm

soswald@employmentlawgroup.comsoswald@employmentlawgroup.comwww.employmentlawgroup.com

Tel: 202.261.2806Tel: 202.261.2806Fax: 202.261.2835Fax: 202.261.2835