ADA Employment Basics and the ADAAA

1. ADA Employment Basics and the ADAAA • Graham L. Sisson, Jr. • Executive Director • General Counsel • Governor’s Office on Disability • Deputy General Counsel • Dept. of Rehabilitation Services • State ADA Coordinator • Adjunct Professor

2. Contact Information • 800-205-9986 ADA Hotline • 205-290-4540 Bham Office • 334-293-7189 Mtgy Office • 888-879-3582 GOOD • Graham.sisson@rehab.alabama.gov • Graham.sisson@good.alabama.gov

3. All information provided is non-binding • Ultra-Reader’s Digest Version • Awareness of the rights/responsibilities of the employer and employees with disabilities • Disability Awareness • ADAAA: What has changed? • Definition of disability • New EEOC Regs • New DOJ Title II and III Regulations • Service Animal definition

4. My Personal Experience • Injured in 1982 motor vehicle collision with drunk driver • Paralyzed from waist down and suffered a closed head injury • Attended college and law school using a wheelchair • Suffered some employment discrimination- understand employer and employee perspectives. • Have experienced public perception of PWD • 5 dollar episode • Restaurant example • Decreased expectations • Want to live American dream

5. Governor’s Office on Disability • Two major purposes • A) Serve as statewide clearinghouse for disability information • B) Serve as liaison to Governor on disability issues • Also identify unmet needs of PWD across the state of Alabama • www.good.alabama.gov • Become a part of GOOD list. • Call us- we can help!

6. Disability Specific Laws • Americans With Disabilities Act (ADA) (1990) • ADA Amendments Act (ADAAA) (2008) • Rehabilitation Act of 1973 , Section 504 • Individuals With Disabilities Education Act (IDEA) (1990)* • Fair Housing Act, as amended in 1988 (FHA) • Air Carriers Access Act of 1986 * Education of All Handicapped Children Act (1975)

7. ADA OVERVIEW • MAINSTREAMING • EQUAL OPPORTUNITY • ACCESS • CIVIL RIGHTS

8. Five Titles of the ADA • Title I: Employment • Title II : Public Entities • Title III: Public Accommodations (private businesses) • Title IV: Telecommunications • Title V: Miscellaneous

9. Definition of Disability • Physical or mental impairment that substantially limits a major life activity or • Record of impairment or • Being regarded as having an impairment

10. Rights and Responsibilities • ADA Title I • Duty to not discriminate against qualified individuals with disabilities • Includes all terms and conditions of employment • Application, interview (hiring) • Reasonable accommodation for job and fringe benefits • Employee with a disability has duty to maintain job performance standards and request accommodation according to Conopco standard • This list does not include every possible duty, but the most central ones • ADAAA • How has it changed these obligations?

11. Title I General Rule • Prohibits discrimination against qualified individuals with disabilities- persons who can perform the essential functions of the job with or without reasonable accommodation. • Covers employers with 15 or more employees • It is not affirmative action- can still hire most qualified person for the job

12. Terms and Conditions of Employment • Hiring and application- employers cannot ask questions related to disability until after a conditional offer of employment. • Employers should focus on ability to do the job with or without reasonable accommodation. • Employers have a duty to provide accommodation so that employees w/d can access privileges of employment such as training or benefits (employee break room, health insurance, life insurance, etc.) • Employers must keep disability information confidential- also HIPAA.

13. Employee Obligations • Where disability is hidden, an employee has a duty to disclose disability where there is a need for accommodation. • Under Conopco, such employee has to identify a specific accommodation and show that it is reasonable.

14. U.S. Supreme Court Decisions Impact • Sutton trilogy • Three decisions that mandate consideration of corrective or mitigating measures when determining substantial limitation • Sutton: eyeglasses • Murphy: high blood pressure medication • Kirkingburg: behavior modification for monocular vision • Toyota v. Williams • To be an ADA disability must substantially limit activities of central importance in life

15. ADA Amendments Act (ADAAA) of 2008 (P.L. 110-325) • President Bush signed it on September 25, 2008, and ADAAA became law • Reverses Sutton and Toyota decisions • 95% of the ADAAA deals with the definition of disability • Redirects emphasis under law to whether covered entities have met their obligations, instead of extensive analysis of whether impairment is a covered disability. • Reverses U.S. Supreme Court decisions which narrowed the ADA definition of disability • Rejects EEOC regulations that define substantially limits as “significantly restricted.” In response, the EEOC stated that it would issue new regs. • Also clarifies that covered entities under the ADA do not have to accommodate those regarded as having a disability. • It became effective on January 1, 2009.

16. Rehabilitation Act Impact • The Rehab Act definition of disability is changed to conform to that within the ADAAA.

17. Covered Disabilities • In the ADAAA legislative history, there is an non- exhaustive listing which includes • Diabetes • Intellectual disabilities • Dyslexia • Learning disabilities

18. The ADA Amendments Act has the following non-exclusive list: Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending Speaking Breathing Learning Reading Concentrating Thinking Communicating Working Major life activities

19. Major Life Activity • Only one major life activity needs to be limited to get coverage under the ADAAA. • In particular, an individual is not denied coverage under the ADAAA because of an ability to do many things so long as that person is substantially limited in just one major life activity. • For example, an employee may be able to take care of many household activities, but still be substantially limited in the major life activity of thinking.

20. Major Bodily Functions • ADAAA Also defines major life activities to include major bodily functions like • Immune system • Normal cell growth • Digestive • Bowel • Bladder • Neurological • Brain • Respiratory • Circulatory • Endocrine • Reproductive

21. List of Mitigating Measures • Non -exhaustive • Includes • Medication • Medical supplies or equipment or appliances • Low vision devices • Prosthetics • Hearing aids or cochlear implants • Other implantable hearing devices • Mobility devices • Oxygen therapy equipment or supplies • Use of assistive technology • Reasonable accommodations or auxiliary aids or services • Learned behavioral or adaptive neurological modifications • *Final EEOC regulations add psychotherapy, behavioral therapy, and physical therapy to the ADAAA’s list of examples. [Section 1630.2(j)(5)]

22. Exclusions • “Regarded as” disability does not include impairments that are transitory or minor. • Transitory means an impairment with an actual or expected duration of 6 months or less. • Can consider corrective measures of eyeglasses or contact lenses • Episodic conditions or those in remission are covered if there is a substantial limitation when active. This is true even if the condition is not active at the time of determination of the existence of disability.

23. Fundamental Alteration • The ADAAA has a specific statement that it does not change the obligation to reasonably modify policies, practices or procedures unless there is a fundamental alteration of the nature of the goods, services, privileges, advantages, etc. that are provided. • This includes academic requirements in post-secondary institutions such as substitution of courses to meet degree requirements.

24. Reverse Discrimination • There shall be no allowance of claims that an individual without a disability has been subjected to discrimination because of his or her lack of disability. • Also, an employee without a disability cannot sue because an employee with a disability was given extra leave as an accommodation, but he was not.

25. ADAAA Regulations • http://www.eeoc.gov/laws/types/disability_regulations.cfm • Comment period ended on November 23, 2009 • New regs. add “sitting, reaching and interacting with others” as major life activities • EEOC regs. add hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular to bodily functions • Substantially limits- will take common sense approach to prove as in relation to average person, not MD opinion or extensive analysis of medical data. • Regs. will be retroactive to January 1, 2009 • Mitigating measure added by EEOC: surgical interventions that do not permanently eliminate an impairment • Seek to simplify proof for substantial limitation in major life activity of working • Side effects of medication (negative effect of mitigating measure) may be considered in determination of ADA disability (i.e. medication for hypertension)

26. EEOC Rules of Construction for Substantially Limits • An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability. • The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. • In keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis. • Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate. • An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”

27. Regarded As • “Regarded as” can be established by showing that an individual has been subjected to an illegal action under the ADA due to a perceived physical or mental impairment whether or not it limits or is perceived to limit a major life activity. In other words, it is irrelevant whether a perceived disability actually limits a major life activity. • Example: an employee perceived as having an intellectual disability but who has severe LD who is denied employment (because of that perception) meets the “regarded as” prong of disability even though the employee is not actually substantially limited in the major life activity of thinking. (based on average SAT or ACT scores or license passage). • “Regarded as” employees are not entitled to reasonable accommodation under the terms of the ADAAA.

28. Caveat • The ADAAA is a relatively new law so there are still areas that may need clarifying. • Clarification will come later through court decisions and regulations. • Today’s session is an attempt to give an overview or outline of major changes introduced by the ADAAA.

29. New Title II and III Regulations • In general, these final rules will take effect 6 months (March 15, 2011) after the date on which they are published in the Federal Register. (September 25, 2010). • Same safe harbor as ADAAG.

30. New Title II Regulations • Definition of service animal basically includes only dogs with limited exceptions. • Dogs used only for emotional support are not service animals. • The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. • The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of "service animal." • Wheelchairs and other power-driven mobility devices must be allowed in all areas open to pedestrian use. • Includes VRI (Video Remote Interpreting) as a kind of auxiliary aid to provide effective communication.

31. Disability Awareness • People First Language • Exercise Disability Etiquette • Removal of attitudinal barriers • Dispel myths • Educate employees about truth

32. Disability Awareness • Disability Etiquette • Make eye contact • Speak to person with a disability directly • Never ask someone associated with a PWD what that person needs or wants • Do not be afraid- PWD are people first

33. Offering Assistance • Before helping a PWD, ask him or her • Do not be upset if someone refuses help • Ask the person how they prefer to be helped as he or she knows best

34. Right Names/Words • "The beginning of wisdom is to call things by their right names." Old Chinese Proverb • "The difference between the right word and the almost right word is the difference between lightning and the lightning bug." Mark Twain

35. Why Care About Disability? • Disability does not demean or lessen a person's self worth or his or her ability to contribute to society. • Disability is a natural part of the human experience. If you help people with disabilities, you will be helping yourself one day or a family member or a friend. Anyone can become disabled in a split second. (TAB) • Disability is as equal part of diversity as race or sex or national origin except that is crosses all social strata.

36. People First Language: the Good , the Bad and the Ugly • Always refer to the person first: • Example: “person with a disability”, not “disabled” person • Do not use “handicapped person” • “Handicap” has origins that make it synonymous with “beggar.” • Others words to avoid : “ cripple, invalid, wheelchair bound, confined to a wheelchair” etc. • More words to avoid: “differently abled”, “challenged”, “able bodied”, “special”, “gimp” or “gimpy”, “afflicted”, “suffering from”, ...

37. Language • Caveat: do not avoid speaking to someone with a disability out of fear of saying the wrong thing. • Example: Ok to say to a person with a visual impairment “see you later.” • Many PWD have a sense of humor. • Do not allow a negative experience with one PWD to cloud attitude toward other PWD

38. Dispel Myths • All PWD meet in a convention each year or know each other • PWD cannot work • Disability is contagious • PWD are superheroes or “inspirational.” • PWD can live off the government • PWD are "victims" • PWD have everything paid for them • PWD are few in number

39. TRUTH • Disability is a natural part of the human experience • There are approximately 54 million PWD • In Alabama there are approximately 945,000 PWD • PWD want to be fully contributing members of society • PWD want what everyone else does: family, job, transportation, happiness, etc.

40. ANY QUESTIONS? • THE END!