THE ADA AMENDMENTS ACT OF 2008

1. THE ADA AMENDMENTS ACT OF 2008 WILL YOU BE PART OF THE 10% INCREASE IN CLAIMS?

2. The New ADA ADA discrimination charges filed with the EEOC increased 10% from 2008 to 2009 WHY?

3. The New ADA Perhaps the enactment of The Americans with Disabilities Act Amendment Act of 2008 (“ADAAA”) (Congress’s anagram, not mine)

4. The New ADA The Federal Register says it all.

5. The New ADA The stated purpose of the ADAAA is to “reinstate a broad scope of protection” by expanding the definition of the term “disability.” See H.R. 3195 § 2(b)(1)–(3)

6. The New ADA The ADAAA “makes important changes to the definition of the term disability by rejecting the holdings in several Supreme Court decisions…” Federal Register / Vol. 74, No. 183 / Wednesday. September 23, 2009 / Proposed Rules

7. The New ADA “The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.” Federal Register / Vol. 74, No. 183 / Wednesday. September 23, 2009 / Proposed Rules

8. The New ADA For years I thought the starting point for any legal analysis of an ADA claim was whether the plaintiff was in the protected class. Apparently I was wrong.

9. The New ADA According to the EEOC “… the focus of an ADA case SHOULD NOT be on whether an individual meets the definition of ‘disability.’” Federal Register / Vol. 74, No. 183 / Wednesday. September 23, 2009 / Proposed Rules

10. The New ADA Instead, the EEOC and Courts are to proceed as quickly as possible to determination of whether unlawful discrimination occurred.

11. The New ADA In other words, the EEOC would have you presume everyone in your workforce is covered by the ADA.

12. The New ADA With this approach, my presentation should end here.

13. The New ADA Fortunately, the law has not reached that stage quite yet. However, as you will see, it is close.

14. The New ADA • The definition of “disability” has not changed: • A physical or mental impairment • that substantially limits • a major Life Activity The interpretation of these of these terms have changed.

15. The New ADA Covered “Impairments”

16. The New ADA Regulatory examples of impairments that WILL CONSISTENTLY meet the definition of “disability”

17. The New ADA Deafness Blindness Intellectual disability Partially / completely missing limbs Physical impairments requiring ambulatory aids Autism Epilepsy Cerebral palsy Diabetes Cancer HIV / AIDS Multiple sclerosis Muscular dystrophy Hepatitis Metal impairment: major depression / bipolar disorder / PTSD / OCDr / schizophrenia

18. The New ADA Regulatory examples of impairments that MAY CONSISTENTLY meet the definition of “disability”

19. The New ADA Asthma Allergies to chemicals Hypertension Carpal tunnel syndrome Hyperthyroidism Narcolepsy Physical activity restrictions lasting several months or more Psychiatric / mental disorders: panic disorder anxiety clinical depression High functioning individuals with a learning disability Dyslexia ADHD

20. The New ADA An employee may be “disabled” even though mitigating measures relieve all limiting effects of an impairment

21. The New ADA • Mitigating Measures include: • Medication • Medical equipment • Mechanical equipment • Prosthetic limbs • Surgery that does not permanently eliminate an impairment • Personal behavioral / physical adaptations

22. The New ADA The negative impact of a mitigating measure may be a “disability,” e.g., a side effect of a medication if it substantially limits a major life activity.

23. The New ADA A chronic impairment that is episodic or in remission is a “disability” if it would limit a major life activity IF the impairment were active.

24. The New ADA THE GOOD NEWS

25. The New ADA Physical or mental impairments expressly NOT covered by the ADAAA

26. The New ADA • “Temporary, non-chronic impairments of short duration with little or no residual effects.” • “Transitory (lasting or expected to last for six months or less) and minor.”

27. The New ADA • Common cold • Seasonal or common influenza • Seasonal allergies • Sprains and strains • Broken bones expected to heal completely without residual effects

28. The New ADA An employee with a vision impairment that can be corrected with “ordinary” eyeglasses or contact lenses is not disabled.

29. The New ADA Transvestism Transsexualism Pedophilia Exhibitionism Voyeurism Gender identity disorders not resulting from physical impairments Homosexuality Bisexuality Compulsive gambling Kleptomania Pyromania Psychoactive substance use disorders resulting from current use of illegal drugs

30. The New ADA Pregnancy without medical complications is not a “disability”

31. The New ADA Current users of illegal drugs or abuser of alcohol remain excluded from coverage Current = less than 6 months clean

32. The New ADA However, regardless of length of abstinence, a person who • has successfully completed a supervised rehabilitation program or otherwise has been rehabilitated successfully OR • is participating in a supervised rehabilitation program such as AA or NA could be a covered individual

33. The New ADA “Substantially Limited”

34. The New ADA The ADAAA also broadens its reach by revising the interpretation of “substantially limited”

35. The New ADA The ADAAA eliminates the standard applied by the Supreme Court in its past decisions.

36. The New ADA An impairment no longer has to prevent, or significantly or severely restrict, an individual from performing a major life activity to be “substantially” limiting.

37. The New ADA The New Standard: A common-sense assessment based on comparing an individual’s ability to perform a single major life activity to the general population.

38. The New ADA This revision results in a transition from an individual qualitative / quantitative standard to a broad, amorphous standard.

39. The New ADA “Major Life Activities”

40. The New ADA The EEOC’s Two Non-Exhaustive Lists

41. The New ADA The Traditional “Major Life Activities”

42. The New ADA Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Sitting Reaching Lifting Bending Interacting with others / communicating Breathing Learning Reading Concentrating/Thinking Interacting Working

43. The New ADA The New Major Life Activity “Operation of Major Bodily Functions”

44. The New ADA The purpose for including major bodily functions is to make it easier for individuals with impairments to have a protected “disability,” i.e., increase the size of the protected class.

45. The New ADA Immune system Normal cell growth Digestive Bowel Neurological Brain Circulatory Respiratory Endocrine Reproductive Hemic Lymphatic Special sense organs Skin Genitourinary Cardiovascular

46. The New ADA THE LONG AND SHORT OF IT IS…

47. The New ADA Take Congress and the EEOC at their word • Coverage is not a primary issue any longer • Unless a physical or mental impairment is expressly excluded from the definition of “disability,” assume the impairment is covered.

48. The New ADA The Focus of an ADA analysis now is on Reasonable Accommodation and other compliance measures which Ed will now address.