The ADAAA -MSATC09

8/14/2019 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

Documents

The ADAAA -MSATC09