The New Disability?

1. The New Disability? Developed by L. Scott Lissner 10/05/08 DETERMINGING DISABILITY & ACCOMMODATIONS UNDER THE ADA & ADAA

2. Presenter • L. Scott Lissner • ADA Coordinator, The Ohio State University • Associate, John Glenn School of Public Policy • Lecturer, Moritz College of Law, Knowlton School Of Architecture & Disability Studies at The Ohio State University • Most recent publications • Universal Design in the Institutional Setting: Weaving a Philosophy into Campus Planning; 2006 NEA • From Legal Principles TO Informed Practice J.E. Jarrow & L.S. Lissner; 2005 AHEAD • BA, Rutgers Univ.; MA, Hunter College; ABD UVA • Lissner.2@osu.edu

3. DISCLAIMERS • Make It Sound Easy • I am not an architect • I am not a lawyer • Embrace Sgt. Friday: The story you are about to hear….

4. POWERPOINT PRESENTATIONSCAN BE DANGEROUS NASA's Columbia Accident Investigation Board identified simplistic thinking from an over-reliance on PowerPoint presentations as a contributing factor in the Columbia shuttle disaster. (New York Times Magazine 12/14/2003)

5. The ADA Amendments Actsof 2008 Public Law 110–325 110th Congress An Act To restore the intent and protections of the Americans with Disabilities Act of 1990. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, . . . . . .

6. CONTEXT • Sept. 26,1973 Sec. 504 Signed • April 28, 1977 Sec. 504 Regulations Implemented

7. 1979 - Southeastern Community College v. Davis “We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program.” Justice Lewis Powell

8. 1987 - Arline v. Nassau County "Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Justice William J. Brennan 1987

9. 1990 The Signing of The ADA

10. 1999 Sutton Trilogy (Sutton, Murphy & Kirkingburg) • 2002 Toyota v. Williams

11. 2007 ADA Restoration Act Introduced • June 2008 Compromise Language Reached on “Substantially Limited” • Changed to the ADA Amendments Act • Passed 402-17 in the House

12. August 2008 Senate Changes Language • Markedly Restricted Back to Substantially Limited • Passed unanimously • New Version Accepted by House Sept. 18

13. September 2008 Signed by Pres. Bush • January 1, 2009 implementation

16. Summary of the Findings • Congress intended the ADA to be broadly construed • Congress based the ADA’s definition of disability on Section 504 of the Rehabilitation Act because of the broad construction represented by Arline v. Nassau County School Board • The Supreme Court’s decisions in the Sutton trilogy and Toyota construed the term disability too narrowly.

17. Summary of the Purposes • Restore the broad protections of the ADA was intended to provide • Reject the Court’s reasoning in the Sutton Trilogy that mitigating measures should be considered as part of determining disability • Reject the Court’s holding in Toyota that the ADA requires a demanding standard that an impairment severely restrict a major life activities

18. Definition of Disability • A physical or mental impairment that substantially limits a major life activity • A record of such an impairment • Being regarded as having such an impairment

19. What is Substantial? • Broad Construction (not Toyota) • Exclude ameliorative impact of mitigating Measures • Medication, medical equipment, prosthetics • Standard eyeglass exception • Assistive technologies • Compensatory strategies and accommodations. • Episodic conditions or those in remission • If it substantially limits when active

20. Limited in What Way? • Manner • Condition • Duration • Compared to the Average Person

21. Major Life Activities • Includes but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

22. Immune Respiratory Circulatory Endocrine Digestive Reproductive Neurological Brain Normal Cell Growth Bowel Bladder “Major Life Activities” also include the operation of major bodily functions including but not limited to :

23. Has a condition or is Regarded As • Broad Construction • Focus on the substantive issues of failure to accommodate or exclusion not class membership • Excludes transitory (<6 months) or minor • Not entitled to accommodations

24. Also of Note • Discrimination on the “basis of disability” • No reverse discrimination • Changes Section 504 to match • Does not change the definition of reasonable accommodation • Does not impact the use of rationally based qualification standards

25. How to respond to the ADAAA’s Implementation • REVIEW: • Policies to reference ADAAA • Accommodation request process • Documentation requirements • Determining essential functions • Determining accommodations • Available resources

26. Title I: Employers with 15 or more workers Title II: State & Local Govt. Title III: Public Accommodations Prohibits discrimination on the basis of disability in programs, benefits and services. Requires the provision of reasonable accommodations Facilities (new construction, renovation & barrier removal) COVERED ENTITITES

27. Non-Discrimination • Has a disability • Record of a disability • Regarded as having a disability • Relationship or association with someone who has a disability. Reasonable Accommodation • Individuals with disabilities

28. Aspects Of Employment • Advertising • Recruitment • Hiring & Terminations • Compensation • Assignment • Transfer & Promotion • Technology & Tools, • Testing & Communications • Professional Development • Pay • Benefits

29. Recruitment Admissions Instruction Housing Research Financial Aid Job Placement Internships The Law applies to provision of all programs and services including:

30. Counseling Intramurals Athletics Transportation Employment Events (Visitors) Internet Services Student Organizations Law applies to provision….

31. Some examples of covered disabilities • Epilepsy • Paralysis • HIV/AIDS • ADD/ADHD • Hearing or visual impairment • Psychological conditions • Specific learning disability • Back/orthopedic conditions • Diabetes • Morbid obesity

32. Documenting Disability • Ask For What You Need • Impairment • Impact related to work place needs • Recommended adaptations • Who Determines Disability • Interactive process • Decision maker of first resort • Grievance process

33. Maintaining Documentation • Confidentiality • Not covered by HIPPA • Not main file • Who Needs to Know • Enough to implement • Safety/Evacuation Issues • Complaint investigators

34. Not generally covered • Minor non-chronic conditions of short duration • Simple physical characteristics • Common personality traits • Environmental, cultural or economic disadvantages • Interpersonal allergies

35. Who is a Qualified Individual? • To determine if a person is a qualified individual, ask two questions: • Does the person meet the necessary pre-requisites? • Can the person perform the essential functions, with or with accommodation? • Are the accommodations reasonable?

36. What Is An Accommodation? • Modifications to policy & practice • An aid, tool, technology, interpreter, etc., that helps the individual with a disability to overcome a barrier • Modifications to the environment

37. Safety Considerations • The nature, severity and duration of the potential harm; • The likelihood that the potential harm will occur; • The imminence of the potential harm; and • The potential for reasonable accommodations to mitigate the risk.

38. Reasonable Accommodation: • Rationally Related to the impacts of the disability • Assists in the effective performance of the essential functions • Makes it possible for an individual with a disability to enjoy an equal participation or employment opportunity

39. Reasonable Accommodation • Does not present an undue burden • Safety • Business necessity • Administrative burden • Financial burden

40. Essential Elements & Functions? • The “fundamental or core goals” of the program or position • Focus on the purpose and result, rather than the manner in which it is performed • Credentials • Do not include marginal functions or secondary benefits • Documentation and Practice • Job/Course descriptions • Creation documents • Past exceptions

41. Evidence For Essential Functions • Written descriptions prepared in advance of the accommodation questions • Consequences • Amount of time spent on the task • Experience of current or former incumbents • The employer/faculty judgment with rational basis • Terms of a collective bargaining agreement • Certification and licensure

42. Deference • Academic institutions, making academic decisions, within their areas of expertise, will receive substantial deference from the courts, DOJ & OCR (Michigan v. Ewing) • Deference is earned through adherence to a “diligent” consideration of the request and “alternative means” to achieving the fundamental program objective, resulting in a “rationally justifiable conclusion (Wynne v. Tufts, Guckenberger v. Boston University, Wong v. Regents of California) • Mere reliance upon tradition or existing rules may well not be a sufficient justification for refusing to implement a requested accommodation (Southeastern v. Davis; PGA v. Martin)

43. Special Cases • Performance Evaluations • Pre & Post accommodation • Oh! That is because of….. • Evaluating the Effectiveness of accommodations • Disciplinary Action • - Conduct is conduct • - Failure to accommodate • - Extenuating circumstances

45. RESOURCES • OSU ADA COORDINAOTOR HTTP://ADA.OSU.EDU E-MAIL ADA-OSU@OSU.EDU • Disability Law Lowdown 20 – Employee Performance Discussion of the Equal Employment Opportunity Commission’s new guidelines on applying performance standards to employees with disabilities under the Americans with Disabilities Act. (QuickTime; also available on ITunes) http://dll.ada-podcasts.com/shownotes/DLLPod20.php • Disability Law Lowdown 21 - Employee Conduct Discussion of the EEOC’s guidance on applying conduct standards to employees with disabilities under the Americans with Disabilities Act. (QuickTime; also available on ITunes) • http://dll.ada-podcasts.com/shownotes/DLLPod21.php

46. Resources • ADA Amendments Act http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt.pdf • EEOC ADAAA Notice http://www.eeoc.gov/ada/amendments_notice.html • Disability Law Lowdown ADAAA Episode http://dll.ada-podcasts.com/shownotes/DLLPod18.php • AHEAD Government Relations http://www.ahead.org/resources/government-relations

47. Resources • DBTAC Webcast Episode Archive http://www.ilru.org/html/training/webcasts/archive/2008/11-19-AM.html • ADA Legal Webinar Archive http://www.onlineconferencingsystems.com/sedbtac_1/102808/ • American Association of People with Disabilities ADAAA Site http://aapd.com/AAPDRedesign/Advocacy/LegislativePrioritiesfront.html • Georgetown University’s ADA Archive http://www.law.georgetown.edu/archiveada/

48. CITATIONS • Southeastern Community College v. Davis, 442 U.S. 397, 406, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979) • School Bd. of Nassau County v. Arline, 480 U.S. 273, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) • Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) • Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) • Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999).

49. Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st Cir. 1992) • Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094 S.D.N.Y. 1997) (Bartlett I); aff’d 2 F. Supp. 2d 388 (S.D.N.Y. 1997) (Bartlett II); aff’d in part, rev’d & remanded in part, 156 F. 3d 321 (2d Cir. 1998)(Bartlett III); vacated and remanded, 119 S.Ct. 2388 (1999)(Bartlett IV); aff’d in part & remanded, 226 F. 3d 69 (2d Cir. 2000)(Bartlett V); 2001 WL 930792 (S.D.N.Y. Aug. 15, 2001) (Bartlett VI)