Everything you wanted to know

about ADAAA,

but were afraid to ask!

Joe Bontke

EEOC Houston District Office

Texas Governor’s Committee on People with Disabilities

What’s in your “backpack”?

"Everyone is entitled to their own opinions, but not their own facts.“

Daniel Patrick Moynihan

4

Figure 1. Growth in Disability Prevalence by Age

Prevalence = 4.5715e0.0383*Age

R2 = 0.9881

0

10

20

30

40

50

60

70

8020

24

28

32

36

40

44

48

52

56

60

64

68

72

76

80

84

88

Age

Pre

vela

nce

(%

)

Disability Prevalence Rate

Source: NIDRR Demographics and Statistics RRTC at Cornell University’s Employment and Disability Institute, calculations from 2003 ACS PUMS file performed by Robert Weathers, 2005.

Only 18% of PWD are born with it

A Few Facts…

95,402 Total Charges Filed!

Types of Charges Filed

33,937

28,37210,601

3,273

24,582

19,453954

RaceSexNational OriginReligionAgeDisabilityEqual Pay Act

*32,690 Retaliation Charges

6

Percentage of ADA Charges by Basis (Top 5 Disabilities), 1993-2007

0.00

0.02

0.04

0.06

0.08

0.10

0.12

0.14

0.16

0.18

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Orthopedic/Structural BackImpairmentRegarded as Disabled

Nonparalytic OrthopedicImpairmentDepression

Diabetes

Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research funded by the USDE-NIDRR.

% of ADA EEOC claims by Issue (Top 5), 1993-2007

0.00

0.10

0.20

0.30

0.40

0.50

0.60

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Discharge

ReasonableAccommodation

Terms/Conditions

Harassment

Hiring

Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research Funded by the USDE-NIDRR.

• What areWhat are the 5 new rules the the 5 new rules the EEOC just issued for interpreting EEOC just issued for interpreting the new ADA?'the new ADA?'

• Do the new regs apply Do the new regs apply retroactively to previous ADA retroactively to previous ADA claims?claims?

• What are What are the the conditions that are conditions that are still excluded from the definition still excluded from the definition of a disability?of a disability?

AD triple AAD triple A• -On September 25, 2008, the ADA -On September 25, 2008, the ADA

Amendments Act (ADAAA) was Amendments Act (ADAAA) was signed into law, it became effective signed into law, it became effective on January 1, 2009.on January 1, 2009.

• -The U.S. Senate and the U.S. House -The U.S. Senate and the U.S. House

of Representatives both unanimously of Representatives both unanimously passed the ADAAA. passed the ADAAA.

• -The ADAAA focuses on the -The ADAAA focuses on the discrimination at issue instead of the discrimination at issue instead of the individual's disability. individual's disability.

• -It makes important changes to the -It makes important changes to the definition of the term "disability" by definition of the term "disability" by rejecting the holdings in several Supreme rejecting the holdings in several Supreme Court decisions and portions of EEOC ADA Court decisions and portions of EEOC ADA regulationsregulations

• -The Act retains the ADA's basic definition -The Act retains the ADA's basic definition of "disability" as an impairment that of "disability" as an impairment that substantially limits one or more major life substantially limits one or more major life activities, a record of such an impairment, activities, a record of such an impairment, or being regarded as having such an or being regarded as having such an impairment. impairment.

• -However, it changes the way that the -However, it changes the way that the statutory terms should be interpreted..statutory terms should be interpreted..

ADA Amendments ActADA Amendments Act• Most significantly, the ADAAA ….Most significantly, the ADAAA ….• directs EEOC to revise the directs EEOC to revise the

portion of its regulations that portion of its regulations that defines the term "substantially defines the term "substantially limits"limits"

• expands the definition of "major life expands the definition of "major life activities" by including two non-exhaustive activities" by including two non-exhaustive lists: lists:

• 1. The first list includes many activities 1. The first list includes many activities that the EEOC has recognized that the EEOC has recognized (e.g., walking)(e.g., walking) as well as activities that EEOC has not as well as activities that EEOC has not specifically recognized specifically recognized (e.g., reading, bending, (e.g., reading, bending, and communicating); and communicating);

• 2. The second list includes major bodily 2. The second list includes major bodily functions functions (e.g., "functions of the immune system, (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine, respiratory, neurological, brain, circulatory, endocrine, and reproductive functions")and reproductive functions")

ADA Amendments ActADA Amendments Act

• States that mitigating measures other States that mitigating measures other than "ordinary eyeglasses or contact than "ordinary eyeglasses or contact lenses" shall not be considered in lenses" shall not be considered in assessing whether an individual has a assessing whether an individual has a disability; disability;

• Clarifies that an impairment that is Clarifies that an impairment that is episodic or in remission is a disability if episodic or in remission is a disability if it would substantially limit a major life it would substantially limit a major life activity when active; activity when active;

ADA Amendments ActADA Amendments Act

• Provides that an individual subjected Provides that an individual subjected to an action prohibited by the ADA to an action prohibited by the ADA (e.g., failure to hire) because of an (e.g., failure to hire) because of an actual or perceived impairment will actual or perceived impairment will meet the "regarded as" definition of meet the "regarded as" definition of disability, unless the impairment is disability, unless the impairment is transitory and minor; transitory and minor;

ADA Amendments ActADA Amendments Act

• Provides that individuals covered only Provides that individuals covered only under the "regarded as" prong are not under the "regarded as" prong are not entitled to reasonable entitled to reasonable accommodation; and accommodation; and

• Emphasizes that the definition of Emphasizes that the definition of "disability" should be interpreted "disability" should be interpreted broadly. broadly.

What is truth

Finished files are the re-

sult of years of scientif-

ic study combined with the

experince of many years of experts.

Finished files are the re-sult of years of scientif-ic study combined with theexperince of many years of experts.

Is your perception

sometimes your truth?

Who would you pick for a Who would you pick for a CEO position?CEO position?

• Candidate A cannot walk. He cannot stand Candidate A cannot walk. He cannot stand without braces that run the entire length of his without braces that run the entire length of his legs; cannot get out of bed, get dressed, reach legs; cannot get out of bed, get dressed, reach the bathroom or get to his desk without the the bathroom or get to his desk without the assistance of another person and a wheelchair.assistance of another person and a wheelchair.

• Candidate B has a glandular disorder and back Candidate B has a glandular disorder and back problem. He takes daily medication and often problem. He takes daily medication and often uses painkillers. He has been hospitalized uses painkillers. He has been hospitalized nine times in the last decade, once for 19 days, nine times in the last decade, once for 19 days, a couple of times for a week at a time.a couple of times for a week at a time.

• Candidate C has a history of depression.Candidate C has a history of depression.

Americans with Disabilities Americans with Disabilities Act-Definition of Act-Definition of

“Disability”“Disability”• A physical or mental impairment that A physical or mental impairment that

substantially limits a major life activity;substantially limits a major life activity;• A record of such an impairment; A record of such an impairment; • Being regarded as having such an Being regarded as having such an

impairmentimpairment• But, the meaning of the terms “major life But, the meaning of the terms “major life

activities” and “substantially limits,” as activities” and “substantially limits,” as well as the definition of “regarded as,” are well as the definition of “regarded as,” are quite different than under the original quite different than under the original ADA.ADA.

Purposes of ADA Purposes of ADA Amendments Act (ADAAA)Amendments Act (ADAAA)

• To To restorerestore the ADA’s broad the ADA’s broad protections as intended by Congress; protections as intended by Congress; andand

• To reject the Supreme Court’s view To reject the Supreme Court’s view in the in the SuttonSutton trilogy that “disability” trilogy that “disability” should be determined by reference should be determined by reference to the effects of mitigating measuresto the effects of mitigating measures

Purposes of ADAAAPurposes of ADAAA

• To reject the Supreme Court’s holding in To reject the Supreme Court’s holding in ToyotaToyota that the ADA requires a that the ADA requires a “demanding standard” for establishing “demanding standard” for establishing coverage and requires that an coverage and requires that an impairment “severely restrict” major life impairment “severely restrict” major life activitiesactivities

• To express Congress’s expectation that To express Congress’s expectation that EEOC will revise its regulation defining EEOC will revise its regulation defining “substantially limits” as “significantly “substantially limits” as “significantly restricted”restricted”

““Substantially Limited”-if Substantially Limited”-if discrimination was prior to discrimination was prior to

1/1/091/1/09• In old regulations, EEOC said to be In old regulations, EEOC said to be

substantially limited, an individual should substantially limited, an individual should be either be either unable to performunable to perform the major the major life activity or life activity or significantly restrictedsignificantly restricted in in the ability to perform a major life activity. the ability to perform a major life activity.

• Consider the Consider the nature and severity nature and severity of the of the impairment;impairment; thethe duration or expected duration or expected duration duration of the impairment; and theof the impairment; and the long long term impactterm impact of the impairment. of the impairment.

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

• Definition of “disability” construed Definition of “disability” construed broadlybroadly

• Mitigating measures (other than Mitigating measures (other than ordinary corrective lenses) should ordinary corrective lenses) should not be considerednot be considered

• Impairment can be a disability even Impairment can be a disability even if if episodic episodic or or in remissionin remission

““Substantially Limits” if Substantially Limits” if discrimination occurred on or discrimination occurred on or

after 1/1/09after 1/1/09•ADA Amendments Act does ADA Amendments Act does

not affirmatively define the not affirmatively define the term “substantially limits.” term “substantially limits.”

•With ADAAA, the disability With ADAAA, the disability determination is “an determination is “an appropriate threshold issue” appropriate threshold issue” but “not an onerous burdenbut “not an onerous burden””

• See 2008 Senate Managers’ Statement at 7See 2008 Senate Managers’ Statement at 7

Major Life ActivitiesMajor Life Activities

• Include, but are not limited to, Include, but are not limited to, caring for oneself, performing caring for oneself, performing manual tasks, seeing, hearing, manual tasks, seeing, hearing, eating, sleepingeating, sleeping, , walking, walking, standing, lifting, standing, lifting, bendingbending, , speaking, breathing, learning, speaking, breathing, learning, readingreading, concentrating, thinking, , concentrating, thinking, communicatingcommunicating, and working., and working.

Major Life ActivitiesMajor Life Activities

• The term “major life activities” also The term “major life activities” also includes the operation of a major includes the operation of a major bodily function, including but not bodily function, including but not limited to, functions of the immune limited to, functions of the immune system, normal cell growth, system, normal cell growth, digestive, bowel, bladder, digestive, bowel, bladder, neurological, brain, respiratory, neurological, brain, respiratory, circulatory, endocrine, and circulatory, endocrine, and reproductive functions.reproductive functions.

Major Life ActivitiesMajor Life Activities• Lists in the ADA Amendments Act are Lists in the ADA Amendments Act are

non-exhaustive.non-exhaustive.• Some activities that the Commission Some activities that the Commission

previously recognized in prior previously recognized in prior interpretive guidance or in litigation – interpretive guidance or in litigation – such as reaching, sitting, interacting with such as reaching, sitting, interacting with others, and eliminating waste – are not others, and eliminating waste – are not specifically included in the ADA specifically included in the ADA Amendments Act, but field staff should Amendments Act, but field staff should assume that these can also be considered assume that these can also be considered major life activities major life activities

Episodic/In RemissionEpisodic/In Remission

• An impairment that is “An impairment that is “episodic or in episodic or in remissionremission” is a disability if it would ” is a disability if it would substantially limit a major life activity substantially limit a major life activity when activewhen active

• An individual with epilepsy who is An individual with epilepsy who is substantially limited in a major life substantially limited in a major life activity such as caring for self, activity such as caring for self, walking, seeing, speaking, or walking, seeing, speaking, or thinking during a seizure would be thinking during a seizure would be an individual with a disability. an individual with a disability.

Episodic/In RemissionEpisodic/In Remission

• An individual with cancer that is in An individual with cancer that is in remission would be an individual with a remission would be an individual with a disability under the first prong of the disability under the first prong of the definition if recurrence of the cancer definition if recurrence of the cancer would substantially limit a major life would substantially limit a major life activity activity

• Other examples include multiple Other examples include multiple sclerosis, hypertension, diabetes, sclerosis, hypertension, diabetes, asthma, major depression, bipolar asthma, major depression, bipolar disorder, and schizophrenia. disorder, and schizophrenia.

Field GuidanceField Guidance

•The regulations on the ADAAA The regulations on the ADAAA may contain further definition of may contain further definition of the term “substantially limits,” the term “substantially limits,”

•Until those regulations are final, Until those regulations are final, EEOC staff should give a broad EEOC staff should give a broad interpretation to the term as is interpretation to the term as is intended by the findings and intended by the findings and purposes of the Actpurposes of the Act. .

• For example, in most cases, it will be For example, in most cases, it will be easy to conclude that impairments easy to conclude that impairments such as diabetes, epilepsy, such as diabetes, epilepsy, paraplegia, blindness, deafness, paraplegia, blindness, deafness, bipolar disorder, monocular vision, bipolar disorder, monocular vision, multiple sclerosis, and Parkinson’s multiple sclerosis, and Parkinson’s disease, among others, will disease, among others, will substantially limit a major life substantially limit a major life activity. activity.

““Comparison to most Comparison to most people” on/after 1/1/09people” on/after 1/1/09

•The ADA Amendments Act The ADA Amendments Act legislative history uses the legislative history uses the term “most people in the term “most people in the general population” instead general population” instead of the EEOC regulatory of the EEOC regulatory phrase “average person in phrase “average person in the general population.” the general population.”

““Comparison to most Comparison to most people” on/after 1/1/09people” on/after 1/1/09

• The legislative history indicates The legislative history indicates that a fact-finder may often be that a fact-finder may often be able to compare an individual’s able to compare an individual’s limitation to the ability of most limitation to the ability of most people in the general population people in the general population using a using a common-sense common-sense standardstandard, without resorting to , without resorting to scientific or medical evidence scientific or medical evidence

““Comparison to most Comparison to most people” on/after 1/1/09people” on/after 1/1/09

• Example, the ability of an individual with Example, the ability of an individual with an amputated limb to perform a major an amputated limb to perform a major life activity is compared to other people life activity is compared to other people in the general population, not to other in the general population, not to other amputees. amputees.

• Similarly, a seventy-year old employee Similarly, a seventy-year old employee with heart disease is compared to other with heart disease is compared to other people in the general population, not people in the general population, not merely to other seventy-year olds or to merely to other seventy-year olds or to other people with heart disease. other people with heart disease.

ADAAA –Don’t consider ADAAA –Don’t consider Mitigating Measures in Mitigating Measures in Determining CoverageDetermining Coverage

Mitigating measures include:Mitigating measures include:

(1)(1)medication, medical supplies and medication, medical supplies and equipment, low vision and hearing equipment, low vision and hearing devices, prosthetics, mobility devices, devices, prosthetics, mobility devices, etc.etc.

(2)(2)Use of assistive technologyUse of assistive technology

(3)(3)Reasonable accommodationsReasonable accommodations

(4)(4)Learned behavioral or adaptive Learned behavioral or adaptive neurological modificationsneurological modifications

One Exception-Consider Ordinary One Exception-Consider Ordinary Eyeglasses or Contact LensesEyeglasses or Contact Lenses

• Definition: “lenses that are Definition: “lenses that are intended to fully correct visual intended to fully correct visual acuity or eliminate refractive error”acuity or eliminate refractive error”

• Distinguished from “low vision Distinguished from “low vision devices,” defined as “devices that devices,” defined as “devices that magnify, enhance, or otherwise magnify, enhance, or otherwise augment a visual image”augment a visual image”

““Regarded As” DisabledRegarded As” Disabled

• Broader definition of “regarded as” Broader definition of “regarded as” disabled that would cover anyone disabled that would cover anyone subjected to an action “prohibited by this subjected to an action “prohibited by this Act” (example, not hired or fired) Act” (example, not hired or fired) because of a real or perceived physical because of a real or perceived physical or mental impairmentor mental impairment

• ““Regarded as” would exclude Regarded as” would exclude impairments that are transitory (less impairments that are transitory (less than six months) and minorthan six months) and minor

• Individuals “regarded as” disabled not Individuals “regarded as” disabled not entitled to reasonable accommodationentitled to reasonable accommodation

ADAAA Field GuidanceADAAA Field Guidance

• The most important practical effect The most important practical effect of the ADA Amendments for EEOC of the ADA Amendments for EEOC investigators and attorneys is that investigators and attorneys is that they should expect to be spending they should expect to be spending more time and effort evaluating the more time and effort evaluating the merits of disability discrimination merits of disability discrimination and reasonable accommodation and reasonable accommodation claims, and less on determining claims, and less on determining whether an individual meets the whether an individual meets the definition of disability.definition of disability.

– General ruleGeneral rule: An employer must : An employer must provide a reasonable provide a reasonable accommodation to an individual accommodation to an individual with a disability if requested and if with a disability if requested and if doing so does not pose an doing so does not pose an undue undue hardshiphardship

Reasonable accommodationReasonable accommodation – A reasonable accommodation is A reasonable accommodation is

a change in the workplace, or a change in the workplace, or in the way things are usually in the way things are usually done, that provides equal done, that provides equal employment opportunities for employment opportunities for individuals with disabilitiesindividuals with disabilities

Undue hardship:Undue hardship:

– Significant Significant difficulty or expensedifficulty or expense– Focus on resources and Focus on resources and

circumstances of employercircumstances of employer– Consider financial difficulty as well Consider financial difficulty as well

as reasonable accommodations that as reasonable accommodations that are extensive, substantial, or are extensive, substantial, or disruptivedisruptive

– consider impact on operationsconsider impact on operations

GINAGINA

• Genetic Information Non Genetic Information Non Discrimination Act (GINA)Discrimination Act (GINA)

• Title II of the Act covers all entities Title II of the Act covers all entities subject to Title VII of the Civil Rights subject to Title VII of the Civil Rights Act of 1964, including the federal Act of 1964, including the federal government. government.

• Title II becomes effective on Title II becomes effective on November 21, 2009.November 21, 2009.

• EEOC’s proposed regulations have EEOC’s proposed regulations have been publishedbeen published

GINAGINA

• Prohibits covered entities from using Prohibits covered entities from using genetic information about an genetic information about an individual when making employment individual when making employment decisions. decisions. (no exceptions)(no exceptions)

• Prohibits the acquisition and Prohibits the acquisition and disclosure of genetic information, disclosure of genetic information, with limited exceptionswith limited exceptions

• Includes an anti-retaliation provision. Includes an anti-retaliation provision.

““Genetic Information”Genetic Information”

• Includes information about an individual’s Includes information about an individual’s genetic tests, genetic tests of a family genetic tests, genetic tests of a family member, and family medical history. member, and family medical history.

• Genetic information does not include Genetic information does not include information about the sex or age of an information about the sex or age of an individual or the individual’s family individual or the individual’s family members, or information that an individual members, or information that an individual currently hascurrently has a disease or disorder. a disease or disorder.

• Genetic information also does not include Genetic information also does not include tests for alcohol or drug use. tests for alcohol or drug use.

GINA-ConfidentialityGINA-Confidentiality

• Employers must keep the information Employers must keep the information confidential and, if the information is in confidential and, if the information is in writing, must keep it apart from other writing, must keep it apart from other personnel information in separate personnel information in separate medical files. medical files.

• An employer may keep genetic An employer may keep genetic information in the same file as medical information in the same file as medical information subject to the ADA. information subject to the ADA.

Exception-- Acquisition of Exception-- Acquisition of Genetic InformationGenetic Information

• One exception, sometimes referred to as the One exception, sometimes referred to as the “water cooler” exception, applies to “water cooler” exception, applies to inadvertent acquisition of genetic information. inadvertent acquisition of genetic information.

• Example-- a supervisor overhears a Example-- a supervisor overhears a conversation between co-workers in which conversation between co-workers in which genetic information is discussed or receives genetic information is discussed or receives genetic information in response to a question genetic information in response to a question about the general health of an employee or about the general health of an employee or employees family member, or where an employees family member, or where an employer receives genetic information as part employer receives genetic information as part of documentation an employee submits in of documentation an employee submits in support of a request for reasonable support of a request for reasonable accommodation under the Americans with accommodation under the Americans with Disabilities Act (ADA) or other similar law. Disabilities Act (ADA) or other similar law.

ADA-Disability Related ADA-Disability Related Questions and Medical Questions and Medical

ExamsExams• General Principles:General Principles:

– Pre-offerPre-offer – no questions or exam – no questions or exam– Post-offerPost-offer – all questions/exams are – all questions/exams are

OK as long as required of all OK as long as required of all applicants in same job categoryapplicants in same job category

– During employmentDuring employment – must be job- – must be job-related and consistent with business related and consistent with business necessitynecessity

– To process reasonable accommodation To process reasonable accommodation requestrequest – if disability and/or need for – if disability and/or need for accommodation not obvious or already accommodation not obvious or already known.known.

GINA/ADA and post-offer GINA/ADA and post-offer medical inquiriesmedical inquiries

• GINA limits an employer’s ability to obtain GINA limits an employer’s ability to obtain genetic information after making a job offer. genetic information after making a job offer.

• Although the ADA Although the ADA currentlycurrently permits a permits a covered entity to obtain family medical covered entity to obtain family medical history or conduct genetic tests of job history or conduct genetic tests of job applicants once an offer of employment has applicants once an offer of employment has been made, provided this is done for all been made, provided this is done for all entering employees in the same job categoryentering employees in the same job category

• That will be That will be prohibitedprohibited upon the effective upon the effective date of GINA. date of GINA.

Other provisionsOther provisions

• No disparate impact under GINA, but the Act No disparate impact under GINA, but the Act directs that a commission be established after six directs that a commission be established after six years to report on possibility of allowing years to report on possibility of allowing disparate impact claimsdisparate impact claims

• Title II of GINA does not directly address the Title II of GINA does not directly address the issue of harassment claims. But, in describing issue of harassment claims. But, in describing the prohibited employment practices, Congress the prohibited employment practices, Congress adopted language similar to that used in Title VII adopted language similar to that used in Title VII and other equal employment opportunity statutes, and other equal employment opportunity statutes, evincing its intent to prohibit discrimination with evincing its intent to prohibit discrimination with respect to a wide range of practices, including respect to a wide range of practices, including harassment harassment

Remedies under GINARemedies under GINA

• Same remedies as Title VII Same remedies as Title VII • Reinstatement, hiring, promotion, back pay, Reinstatement, hiring, promotion, back pay,

injunctive relief, pecuniary and non-pecuniary injunctive relief, pecuniary and non-pecuniary damages (including compensatory and damages (including compensatory and punitive damages) and attorneys’ fees and punitive damages) and attorneys’ fees and costs. costs.

• Title VII’s cap on combined compensatory Title VII’s cap on combined compensatory and punitive damages also applies to actions and punitive damages also applies to actions under Title II of GINA.under Title II of GINA.

• Punitive damages are not available against Punitive damages are not available against federal, state, or local government federal, state, or local government employers.employers.

Consider if covered under Consider if covered under ADA prior GINA effective ADA prior GINA effective

datedate• Remember, for alleged Remember, for alleged

discrimination on genetic discrimination on genetic information prior to 11/21/2009, information prior to 11/21/2009, conduct may be prohibited by ADA conduct may be prohibited by ADA

• Example, carpal tunnel conductivity Example, carpal tunnel conductivity teststests

LILLY LEDBETTER FAIR PAY ACTLaw Reinstates EEOC Position on Timeliness of Filing Wage

Bias Charges

Ledbetter v Goodyear Tire & Rubber (2006)In pay discrimination cases the federal statute of limitations begins to run when the pay setting decision is made.Lilly Ledbetter Fair Pay Act 2009Unlawful employment practice occurs each time wages, benefits, or other compensation is paid

EEOC

From www.eeoc.govThe U.S. Equal Employment Opportunity Commission PANDEMIC PREPAREDNESS IN THE WORKPLACE AND THE

AMERICANS WITH DISABILITIES ACT

the Americans with Disabilities Act (ADA) and pandemic planning in the workplace. It identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning such as:

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?

When may an ADA-covered employer take the body temperature of employeesduring a pandemic?

Does the ADA allow employers to require employees to stay home if they havesymptoms of the pandemic influenza virus?

Lilly Ledbetter Fair Pay Lilly Ledbetter Fair Pay ActAct

• Lily Ledbetter Fair Pay act restores the Lily Ledbetter Fair Pay act restores the paycheck accrual rule paycheck accrual rule

• Charge alleging pay disparity based on Charge alleging pay disparity based on protected characteristic is timely if filed protected characteristic is timely if filed within 180/300 days (300 days in our within 180/300 days (300 days in our district) of pay decision, when subjected district) of pay decision, when subjected to the pay decision OR discriminatory to the pay decision OR discriminatory pay checkpay check

• Retroactive effective date of May 28, Retroactive effective date of May 28, 20072007

• Lilly Ledbetter Fair Pay Act amends Lilly Ledbetter Fair Pay Act amends Title VII, the ADA, the ADEA, and Title VII, the ADA, the ADEA, and the Rehabilitation Act so it applies if the Rehabilitation Act so it applies if compensation discrimination was compensation discrimination was based on other protected based on other protected characteristics under those statutes, characteristics under those statutes, such as race, national origin, age, such as race, national origin, age, disability etc.disability etc.

Public Policy Factors

•Social Security Benefits

•Work Incentives•Health Care Coverage

•Nondiscrimination Legislation

•Workforce Development Initiatives

Individual Factors

•Nature of disability/impairment

•Prior work experience•Prior training•Family/social supports

Systems / Organizational

Factors•Efficacy/philosophy of state VR service delivery systems

•Efficacy/philosophy of community-based support services

•Employer policies and practices

Factors Impacting Successful Employment Outcomes for People with Disabilities*

*Illustrative, not exhaustive, list

MYTH OR FACT?MYTH OR FACT?There is a higher percentage of There is a higher percentage of

people with disabilities employed people with disabilities employed than those people without a than those people without a

disabilitydisability

MYTH78% of people without disabilities reported being employed full or part time, whereas

that figure for people with disabilities is only 35%

barriers

Myths are roadblocks that interfere with the ability of individuals with disabilities to have equality in employment.

Roadblocks result from lack of experience or interaction with persons with disabilities

Lack of familiarity nourishes negative attitudes concerning employment of persons with disabilities.

Accommodations InformationAccommodations Information

● ● a 2003 National survey found that only a 2003 National survey found that only 24% had to make accommodations for 24% had to make accommodations for employees with disabilities.employees with disabilities.• a study of employers making a study of employers making accommodations found half of all accommodations found half of all accommodations had no costaccommodations had no cost• those that did had a median cost of those that did had a median cost of $600.$600.• one-third of employers allow one-third of employers allow telecommuting.telecommuting.

Whose responsibility is it Whose responsibility is it

• It is the employee’s responsibility It is the employee’s responsibility to request an accommodationto request an accommodation

• However, the employer is However, the employer is responsible for notifying responsible for notifying applicants and employees of its applicants and employees of its obligation to provide obligation to provide accommodationsaccommodations

How does an employer How does an employer determine if determine if

an individual is covered?an individual is covered?• Once an employee asks for an Once an employee asks for an

accommodation, an employer may accommodation, an employer may request documentation.request documentation.

• The information must be kept The information must be kept confidential.confidential.

• The information must not be more The information must not be more intrusive or extensive than is job-related intrusive or extensive than is job-related or consistent with business necessity.or consistent with business necessity.

How is the right accommodation How is the right accommodation determined?determined?

Informal, Informal, interactiveinteractive process between process between employer and employee.employer and employee.

• A good resource is A good resource is

The Job Accommodation Network The Job Accommodation Network

1 800 526 72341 800 526 7234

• Employer makes final determination for the Employer makes final determination for the best R.A. in compliance with the ADA.best R.A. in compliance with the ADA.

• Not required if it would impose an Not required if it would impose an undue undue hardshiphardship

Disability and Business Technical Assistance Disability and Business Technical Assistance Centers DBTACs 1 800 949 4ADACenters DBTACs 1 800 949 4ADA

Region VIII

Region II

Region V

Region VI

Region IX

Region IV

Region III

Region X

New England DBTACADA

1-800-949-4232

90% of education is knowing where to find the information when you need it.

Joe Bontke

713 209 3436 office

713 907 2855 cell

joe.bontke@eeoc.gov email