Tennessee Human Rights Commission Employment Law Seminar June 21, 2012

1. Tennessee Human Rights CommissionEmployment Law SeminarJune 21, 2012 Katharine W. Kores Memphis District Director Equal Employment Opportunity Commission

2. Americans with Disabilities Act of 1990 • Effective July 1992 • Prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in all aspects of employment.

3. Americans with Disabilities Act Amendments Act of 2008 • Enacted on 9/25/2008 with broad bi-partisan support. • Reaction to judicial interpretations of the ADA which narrowed the coverage of the law. • Effective 1/1/2009 • EEOC ADAAA regulations published on 3/25/2011.

4. ADAAA Changed Interpretation of Definition of Disability • Individual With A Disability • Has a physical or mental impairment that substantially limits a major life activity; • Has a record of such an impairment; or • Is regarded as having such an impairment.

5. ADAAA Key Provisions • Definition of disability broadly construed • Mitigating measures not to be considered • Major life activities broadened • Lower standard for “substantially limits” • Episodic conditions can be disability • “Regarded as” prong “clarified.”

6. Guiding Principles • ADAAA makes it easier to meet the definition of “disability” • ADAAA states the definition of “disability” in the ADA “shall be construed in favor of broad coverage” and “should not demand extensive analysis”

7. Qualified • A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.

8. Major Life Activity • Includes, but not limited to • Caring for oneself • Seeing • Hearing • Walking • Standing • Learning • Concentrating • Thinking • Communicating • Working

9. Major Life Activity • Major Bodily functions include, but not limited to: • Immune System • Normal Cell Growth • Digestive • Bowel • Bladder • Neurological • Brain • Circulatory • Endocrine

10. Reasonable Accommodation • Adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. • Making existing facilities used by employees accessible • Job restructuring, modifying work schedules, reassignment to a vacant position • Acquiring or modifying equipment, providing qualified readers or interpreters • Accommodations vary depending on the needs of the individual

11. Reasonable Accommodation • An employer is required, absent undue hardship, to provide a reasonable accommodation to an individual who meets the definition of disability

12. Reasonable Accommodation Examples • Deaf applicant may need sign language interpreter • Employee with diabetes may need regularly scheduled breaks • Blind employee may need someone to read information on a bulletin board • An employee with cancer may need leave for treatment – may have to consider leave which exceeds FMLA requirements or employer policies.

13. Undue Hardship • Excessively costly • Extensive • Substantial • Disruptive • Fundamentally alters nature or operation of the business

14. Medical Exams and Inquiries(not changed by ADAAA) • Pre-Offer • Not allowed to ask applicants about existence, nature or severity of disability or conduct medical examinations • Post-Offer • May ask disability-related questions and conduct medical examination if it is done with everyone in the same job category.

15. Medical Exams and Inquiries • Post-Hire • Strict limitations on circumstances under which medical inquiries or examinations are made • Permitted only when a reasonable belief, based on objective evidence, that an employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition.

16. Medical Records are Confidential(not changed by ADAAA) • Basic Rule with limited exceptions • Employers must keep confidential any medical information they learn about an applicant or employee.

17. EXTRA

18. GINA and ADA • ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability. • GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition.

19. GINA’s Purposes • Enacted in response to developments in the field of genetics, the decoding of the human genome, and advances in genomic medicine. • Congress was concerned that people were not taking advantage of genetic tests that could provide beneficial information because of concerns about discrimination by insurers or employers with access to their genetic information.

20. Basic Rules Related to Employment • Prohibits use of genetic information to discriminate in employment • Includes prohibition on harassment and retaliation • Restricts employers and other entities covered by GINA from requesting, requiring, or purchasing genetic information • Requires that covered entities keep genetic information confidential, subject to limited exceptions

21. What is Genetic information?Part 1 • Genetic Information means information about: 1. An individual’s genetic tests (1635.3(f)) 2. Genetic tests of family members (1635.3(a)) 3. The manifestation of a disease or disorder in family members (family medical history – all conditions - not limited to conditions currently known to be inheritable - 1635.3(b))

22. What is Genetic Information?Part 2 • Genetic information includes: 4. Request for or receipt of genetic services by an individual or family member • Meaning: genetic test, counseling, education 5. Genetic information of a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using an assisted reproductive technology.

23. Genetic Information Does NOT Include • Information about an individual’s or family member’s race, sex, ethnicity, or age • The fact that an individual currently has a disease or disorder (manifested condition) – this individual would be protected by the ADA if the disease rises to the level of a disability.