WELCOME

1. WELCOME Americans with Disabilities Act Amendments Act: Focus on Employment

2. Presenter • Suzette Dyer • University of Oklahoma • Disability Resource Center, Director • Division of Student Affairs • OU Norman, OUHSC, OU Tulsa • sdyer@ou.edu • (405) 325-3852 phone • (405) 325-4491 fax • (405) 325-4173 TTY

3. ADA-Five Titles Title I-Employment Title II- Public Services (state and local government including public school districts and public transportation) Title III-Public Accommodations and Services Operated by Private Entities Title IV-Telecommunications Title V-Miscellaneous Provisions

4. Purpose & Enforcement Unlawful to discriminate in employment against a qualified individual with a disability Enforced by the EEOC Remedies for violation include hiring, promotion, reinstatement, back pay, restored benefits, attorneys fees, accommodation Compensatory and punitive damages may be available for intentional discrimination

5. Employment Practices Covered Recruitment Pay Hiring Firing Promotion Job Assignments Training Leave Lay Off Benefits All Other Employment Related Activities

6. ADA Amendments Act of 2008 Key Provisions of ADAAA in four main areas: Definition of Disability Major Life Activities Individuals regarded as disabled Use of Mitigating Measures

7. Definition of Disability • Not everyone with an impairment is considered disabled under the law • An individual with a disability is defined as a person who: • Has a physical or mental impairment which substantially limits one or more of such person’s major life activities; • Has a record of such an impairment; or • Is regarded as having such impairment

8. Definition of Disability • Definition remains the same but must be construed in favor of broad coverage under the act • Impairments that are episodic or in remission are considered a disability if they would substantially limit a major life activity during times when it is active. • Depression • Fibromyalgia • Multiple sclerosis

9. Major Life Activities Caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Eating Sleeping Standing Lifting Bending Reading Communicating Working Thinking Concentrating

10. Major Life Activities Expanded to Operation of Major Bodily Functions Immune system Normal cell growth Digestive functions Bowel Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive

11. Regarded as Disabled Individual is regarded as having a disability if he or she has been subjected to discrimination because of an actual or perceived impairment regardless of whether the impairment is perceived to limit a major life activity Employers do not have to provide reasonable accommodation to employees “regarded as” being disabled

12. Regarded as Disabled Impairments that are transitory and minor are not included in the definition of “regarded as” Transitory impairment is a condition with an actual or expected duration of no more than 6 months

13. Mitigating Measures • Disability determinations must be made without considering mitigating measures • medication • low vision devices • hearing aides • prosthetics • Rejected the “Sutton Trilogy” case law that narrowed the definition under ADA

14. The Sutton Trilogy Sutton v. United Air Lines, Inc.(1999)- the Court held that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses.

15. The Sutton Trilogy Albertson's, Inc. v. Kirkingburg (1999)-individual had amblyopia(weak eye)--an uncorrectable condition that left him with 20/200 vision in his left eye and thus effectively monocular vision. The Court ruled that while monocularity inevitably leads to some loss of horizontal field of vision and depth perception monocularity does not invariably cause a substantial limitation of a major life activity

16. The Sutton Trilogy Murphy v. United Parcel Service, Inc.(1999)-the individual was not qualified because medication was sufficient to control his high blood pressure

17. Toyota Motoring Manufacturing v. Williams Toyota Motoring Manufacturing v. Williams (2002) The Court found that Williams was not disabled under the ADA because she could do things that were central to one’s individual or normal life. In other words, she could take care of herself, take care of her hygiene, that sort of thing.

18. Reasonable Accommodation Definition A reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that allows a qualified individual with a disability to perform the essential functions of the job. *Disability Business Technical Assistance Center-Northwest

19. Qualified Individual • A Qualified Individual with a disability is an individual who: • satisfies the skill, experience, education, and other job-related requirements of the position • can perform the essential functions of the position, with or without accommodation *Disability Business Technical Assistance Center-Northwest

20. Essential Functions • Essential functions are job duties that are fundamental to the position, as opposed to marginal or occasional duties that may be performed by the worker. F actors for determining essential functions of a job include: • that the position exists specifically to perform the essential functions • the number of other employees available to perform the same job duties • expertise or skills required *Disability Business Technical Assistance Center-Northwest

21. Types of Reasonable Accommodation Modify a job Modify a policy Modify a facility Use a product or equipment Modify or design a product Allowing employee to take paid leaves of absence Obtain a service Reassign to a vacant position Modify a work schedule Modify tests and training materials Restructure job to move non-essential functions to another employee

22. Examples of Accommodations that are NOT reasonable Creating new jobs Displacing other employees Violating another employee’s rights (seniority) Lowering production standards Eliminating primary or essential job responsibilities Providing personal aides or devices Excusing a uniformly applied conduct rule that is job-related and consistent with business necessity (e.g. violence, disruptive behavior)

23. Undue Hardship The only limitation on an employer’s responsibility to provide reasonable accommodation is that no modification is required if it would cause undue hardship to the employer

24. Undue Hardship Undue Hardship: When an accommodation is difficult, expensive, disruptive, or will fundamentally change the nature of the position Fundamental Alteration: When an accommodation would change the nature of the business or the worker’s job description so much that it would no longer resemble the original

25. OU Reasonable Accommodation Policy The University of Oklahoma will reasonably accommodate otherwise qualified individuals with a disability unless such accommodation would pose an undue hardship, would result in a fundamental alteration in the nature of the service, program or activity or in undue financial or administrative burdens.  The term "reasonable accommodation" is used in its general sense in this policy to apply to employees, students, and visitors.

26. OU Reasonable Accommodation Policy Reasonable accommodation may include, but is not limited to: Making existing facilities readily accessible and usable by individuals with disabilities. Job restructuring. Part-time or modified work schedules. Reassignment to a vacant position if qualified. Acquisition or modification of equipment or devices. Adjustment or modification of examinations, training materials or policies. Providing qualified readers or interpreters. Modifying policies, practices and procedures.

27. OU Reasonable Accommodation Policy The Disability Resource Center, unless otherwise provided, is the central point-of-contact to receive all requests for reasonable accommodation and to receive all documentation required to determine disability status under law.  This center will then make a recommendation on accommodation to the appropriate administrative unit.  Reasonable accommodation with respect to employment matters should be coordinated with the Office of Human Resources.  Reasonable accommodation with respect to academic matters, including but not limited to faculty employment, should be coordinated with the Office of the Provost while all other issues of reasonable accommodation should be coordinated with the Office of the Vice President for Administrative Affairs.

28. Grievance Process Under OU Policy Individuals who have complaints alleging discrimination based upon a disability may file them with the Equal Opportunity Office in accordance with prevailing University discrimination grievance procedures.

29. Steps in the Accommodation Process • Getting to the Disability Resource Center • Meeting the eligibility requirements • Deciding on specific accommodations • Interactive dialogue among all parties • All parties may suggest appropriate accommodations • Implementing the agreed upon accommodations • Be explicit • Document dates, actions, adjustments • Process should be ongoing

30. Why be explicit ? If you don’t specify the goal you cannot reach it. If you don’t know where you want to go, there is no way of knowing when you arrived. If you don’t remember how you did it in the first place, there is no way to do it again. *Disability Business Technical Assistance Center-Northeast

31. Revising the Accommodation Plan Necessary only when changes need to be made Continue the original accommodations while making adjustments Small adjustments can usually be handled between you and the employee Communicate any changes to the plan with the DRC in writing

32. Performance Standards- Scenario #1 A computer programmer with a known disability has missed deadlines for projects, necessitating that other employees finish his work. Further, the employee has not kept abreast of changes in the database package, causing him to misinterpret as system problems changes that he should have known about. The employee is placed on a Performance Improvement Plan, but his performance does not improve and he is terminated. At no time does the employee request a reasonable accommodation (i.e., inform the employer that he requires an adjustment or change as a result of a medical condition). Does this violate the ADA? Scenario from The U.S. Equal Employment Opportunity Commission

33. Attendance Issues- Scenario #2 A manager’s starting time is 8 a.m., but due to the serious side effects of medication she takes for her disability she can’t get to work until 9 a.m. The manager’s late arrival results in a verbal warning, prompting her to request that she be allowed to arrive at 9 a.m. because of the side effects of medication she takes for her disability. The manager’s modified arrival time would not affect customer service or the ability of other employees to do their jobs, and she has no duties that require her to be at the office before 9 a.m. The supervisor denies this request for reasonable accommodation, saying that as a manager she must set a good example for other employees about the importance of punctuality Does this violate ADA? Scenario from The U.S. Equal Employment Opportunity Commission

34. Alcoholism & Use of Illegal Drugs-Scenario # 3 A police officer is involved in an accident on agency property for which he is charged with driving under the influence of alcohol (DUI). Approximately one month later, the employee receives a termination notice stating that his conduct makes it inappropriate for him to continue in his job. The employee states that this incident made him realize he is an alcoholic and that he is obtaining treatment, and he seeks to remain in his job Does this termination violate ADA? Scenario from The U.S. Equal Employment Opportunity Commission

35. Are you still with me?-Scenario # 4 LeeAnn, who has a spinal cord injury, has always been an excellent employee who gets along well with co-workers and supervisors. Recently, she has difficulty getting to work on time and has been missing a significant amount of work due to problems with childcare. Is this an ADA issue?

36. Overview-Supervisor Responsibilities Refer employee to DRC to have disability documented and appropriate accommodations determined Help provide reasonable accommodation Discuss employee-related accommodations with the employee Keep disability-related information confidential Demonstrate confidence in employee’s abilities to achieve their potential

37. Overview-DRC Responsibilities Provide information for individuals to access services Determine eligibility based on disability and functional limitations Provide accommodations in a timely manner Maintain university standards Keep disability information confidential, except as allowed by law Select among equally effective and appropriate accommodations Advocate responsibly for rights of persons with disabilities

38. Important Points to Keep In Mind You are not expected to be an expert on disability The design and implementation of disability-related accommodations is a collaborative process

39. Important Points to Keep In Mind • Four main implications for supervisors: • Employees must be able to perform essential functions of the job • Employees have same rights to all programs, services, activities, and facilities • Are eligible to receive accommodation related to their disability • Right to confidentiality of disability-related information

40. DRC Philosophy Institutional responsibility At a minimum, two sides to every story Individuals with disabilities are the expert of their own abilities and limitations (Harris, 1994)

41. DRC Philosophy Staff of thousands Ramps are only the beginning Empower rather than rescue Balance employee’s civil rights with institutional standards Tolerate ambiguity Use the race and gender template to determine if an action is discriminatory (Harris, 1994)

42. Thank you! I appreciate the opportunity to share information on university obligations under federal law with you today. Please contact me if I can provide additional consultation to you on any disability issue pertaining to faculty, staff, or students. sdyer@ou.edu