Recent Changes to the ADA -- the 2008 Amendments to the ADA

1. Recent Changes to the ADA --the 2008 Amendments to the ADA Charles R. Bailey, Esquire

2. Introduction • The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. prohibits discrimination on the basis of disability in employment; state and local government; public accommodations; commercial facilities; transportation; and telecommunication, as well as the United States Congress.1 Americans with Disabilities Act (ADA). A Guide to Disability Rights Laws. (2009)

3. Introduction • On January 1, 2009, the ADAAA went into effect changing the way the definition of “disability” will be interpreted. • Congress has amended the ADA with the ADA Amendments Act of 2008 to legislatively reverse four key Supreme Court decisions and substantially expand the number of persons covered by the law. • Sutton v. United Airlines, 527 U.S. 41 (1999); • Murphy v. Untied Parcel Service Inc., 527 U.S. 516 (1999); • Albertson’s Inc. v. Kirkinburg, 527 U.S. 555 (1999); and • Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

4. Background • In a trio of cases in 1999, the Sutton trilogy, the Supreme Court narrowly defined coverage under the ADA ruling that in determining whether a person with a correctable condition has a disability under the first “prong” of the ADA (a physical or mental impairment that substantially limits a major life activity), the effects of the person’s corrective measure (e.g. eyeglasses, medication) must be considered.

5. Background: Sutton v. United • Sutton v. United Airlines, 527 U.S. 41 (1999) • Facts: Identical twins with myopia not hired as pilots because they did not meet the minimum vision requirement. Without glasses or contacts (corrective measures) they could not drive a vehicle, watch TV, or shop. With glasses or contacts, they could function as an individual without a similar impairment.

6. Background: Sutton v. United • Issues: 1) should the determination that a physical impairment is substantially limiting be made without reference to corrective measures that mitigate the impairment; and 2) is poor vision regarded as an impairment that substantially limits the Suttons in a major life activity.

7. Background: Sutton v. UnitedHolding • That the plaintiffs were not disabled because their eyesight was corrected with glasses. The determination of disability under the ADA should be made in reference to an individual's ability to mitigate his or her impairment through corrective measures. • That for an employee to establish she was “regarded as” disabled, the employee had to prove the employer regarded her as having an impairment that would qualify as an actual disability.

8. Background: Sutton v. United • Rationale: Although each plaintiff suffered from severe myopia, their vision was correctable with glasses and both plaintiffs were able to function normally in their daily lives; thus, the plaintiffs were not disabled because their eyesight was corrected with glasses on, mitigating measures.

9. Background: Sutton Trilogy • The premise in these holdings is that if an individual’s physical or mental impairment does not substantially limit or affect the person, that person does not actually suffer from a disability. The determination of whether an individual is disabled must take into account the effect of the remedial measure taken to correct or mitigate the physical or mental impairment. • The Court found that the individuals in these cases are not persons with disabilities under the first prong of the ADA because when they are evaluated in their corrected state, they are not substantially limited in any major life activity. Parry, John. Mental Disability Law, Evidence and Testimony. American Bar Association. (2007).

10. Background: Toyota • In Toyota Motor Manufacturing, Kentucky, Inc., v. Williams, 535 U.S. 184 (2002), the Supreme Court further narrowed the scope of the ADA which held that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled.”

11. Background: Toyota • Facts: the Plaintiff alleged that Toyota failed to provide adequate reasonable accommodation for her disability as required by the ADA. Plaintiff suffered from carpal tunnel syndrome and other muscular-tendon condition that limited her ability to lift objects and hold her arms over her head for long periods of time. Toyota had changed her role in their plant several times, but she was once again asked to perform a job that involved lifting..

12. Background: Toyota • Issue What standard should be used when determining that someone is disabled in a way that substantially limits them from performing manual tasks? • Holding: employee’s carpal tunnel syndrome was not a disability because it was not “substantially limiting.” • An employee is substantially limited in performing manual tasks when he or she has an impairment that "prevents or severely restricts the individual from doing activities that are of central importance to most peoples’ daily lives." • This interpreted the term “substantially limits” strictly and suggested that the ADA only protected employees with “severe impairments.”.”

13. Overview of Changes • The 2008 Amendments Act changes the ADA in four basic ways: • increasing the “major life activities” to be considered in determining disability; • overruling Sutton so that mitigating measures cannot be considered in determining whether individuals are disabled; • overruling Toyota and instructing the EEOC to broadly define the term “substantially limits”; and • expanding “regarded as disabled” claims so that plaintiffs must only prove the employer regarded them as having a physical or mental impairment (rather than requiring proof that the employer perceived them to be limited in a major life activity).

14. Purpose of the Amendments • The ADA Amendments Act is intended to broaden and strengthen the protections afforded to disabled persons by the ADA. • Congress expressly rejected and overruled the “extensive analysis” and high standard the Court had employed previously in determining whether an individual is disabled.

15. Why did Congress change the ADA? • Congress also found that the Equal Employment Opportunity Commission’s (EEOC) current regulation, defining “substantially limits” as “significantly restricted,” sets too high of a standard and thus was inconsistent with Congressional intent. • Congress intended the ADA definition of disability to be construed broadly but the courts were finding too many people outside the ADA’s protection as courts and the government agencies were interpreting the definition too narrowly.

16. Definition of Disability • The basic three part definition of 42 U.S.C. § 12102(2) stays the same, but how the definition will be interpreted has changed. • "Disability" is defined under the ADA as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. Central to the first prong of this definition is the requirement that the impairment substantially limits one or more major life activities. 129 C.F.R. 1630.2(g).

17. “The ADAAA changes the definition of “disability” by the following changes: • Provides illustrative list of major life activities which includes for the first time “major bodily functions.” • Rejects the high standards used by the EEOC and Supreme Court to define “substantial limitation.” • The ameliorative (positive) effects of mitigating measures (other than glasses or contacts) cannot be considered in determining “disability.” • Impairment can be a disability even if it is episodic or in remission. • The definition of “regarded as” is expanded.

18. “Substantially Limits” • The ADAAA rejects the definition of “substantially limits” in the Toyota case and in EEOC regulations that define “substantially limits” as “significantly restricted.” • The ADAAA directs the EEOC to revise its regulations to be consistent with the goal of the Amendments to broaden the class of persons covered by the ADA.

19. “Substantially Limits” • When the ADA was enacted, Congress did not define the term “substantially limits.” • The EEOC filled this void with an elaborate regulatory definition; according to the EEOC an impairment substantially limits a major life activity if: • the person is completely unable to engage in the major life activity; or • the person is significantly restricted in the major life activity when compared to the average person in the general population. • these limitations must be permanent or long-term. 129 C.F.R. 1630.2(j).

20. “Substantially Limits” -- EEOC • Under the ADAAA, Congress expressly delegated the task to the EEOC of drafting regulations that define "substantial limitation.“ • The EEOC has not yet drafted any such regulations. According to their agenda, the EEOC will probably address the regulations later this year. • In the past, the EEOC defined “substantial limitation” as "significantly restricted," but Congress told the EEOC that this standard is too high. Pub. L. No. 110-325, § 2(b)(6).

21. “Substantially Limits” • Old Standard: an impairment "substantially limits" a “major life activity" if it "prevents or severely restricts the individual from performing the activity." Toyota v. Williams. • New Standard: reduces the degree of impairment required for protection, and an impairment that substantially limits one major life activity is enough to be considered a disability.

22. “Substantially Limits” & “Mitigating Measures” • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, prosthetics, hearing aids, mobility devices, and oxygen therapy equipment. • An individual is disabled if an impairment would be “substantially limiting” without the assistance of “mitigating measures.” 1 42 U.S.C. § 12102(4)(E).

23. “Mitigating Measures” What is a mitigating measure? • “Mitigating Measures” are things that lessen or ameliorate the effects of an impairment, including, but not limited to: • medication, medical supplies, equipment, or appliances, low-vision devices (not including ordinary eyeglasses or contact lenses), prosthetics, including limbs and devices, hearing aids and cochlear implants, or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; • use of assistive technology; • reasonable accommodations or auxiliary aids or services; or • learned behavioral or adaptive neurological modifications.

24. “Mitigating Measures”Old Standard • Sutton v. United Air Lines, 527 U.S. 184 (1999); Murphy v. United Parcel Service Inc., 527 U.S. 516 (1999), and Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999) - when determining whether persons are disabled under the ADA, mitigating measures (such as medication or devices) were to be taken into account in determining whether a person was substantially limited in a major life activity.

25. “Mitigating Measures”New Standard • ADAAA prohibits employers from considering the ameliorative effects of mitigating measures, except for ordinary eyeglasses and contact lenses. • Now, when assessing an employee's physical or mental impairment, an employer must determine whether the impairment would substantially limit a major life activity if corrective measures were not in fact being taken. • Employee’s condition will be judged in the unmitigated state. • This means that in an adverse employment issue of possible discrimination, the employee's disabling condition will now be considered without regard to mitigating measures. Scofield, Trent. J., Reiss, Sandra B. The New and Expanded Americans with Disabilities Act. The Alabama State Bar. 70 Ala. Law. 38, 41 (2009).

26. “Mitigating Measures” – not taken into consideration examples Examples of different employees who may now be considered disabled under the ADAAA because the employer may not take into account the mitigating measure: • “the medication of a legal assistant whom the employer knows has bi-polar disorder; • the weekly treatments of a waiter with HIV; • the insulin used by an salesperson who is diabetic; • the walking cane a plumber utilizes to walk: • the low-vision device relied upon by the elementary school teacher with glasses; • the prosthetic leg used by the foreman; • the hearing aid or cochlear implant used by the customer service representative; • the wheelchair used by a human resource manager; or • the oxygen therapy required by the librarian.” Scofield, Trent. J., Reiss, Sandra B. The New and Expanded Americans with Disabilities Act. The Alabama State Bar. 70 Ala. Law. 38, 41 (2009).

27. “Mitigating Measures” Exception • If a person is able to correct her vision with ordinary eyeglasses or contact lenses, she is not substantially limited in the major life activity of seeing. • The ADAAA expressly requires consideration of the ameliorative effects of "ordinary eyeglasses or contact lenses" when assessing whether impairment substantially limits a major life activity. • The purpose of this exception is to prevent the many individuals who wear either ordinary eyeglasses or contact lenses from making claims of disability on those grounds. 142 U.S.C. § 12102(4)(E)(ii). May, Randi B.; Lowden, Kathleen. Broadening “Disability” – What Next? (2009).

28. “Episodic or Remission” • Old standard: persons may not have been covered depending on how long that person experienced the impairment or condition. • New standard: The ADAAA further broadens the definition of "disability," by specifying that an impairment that is episodic or in remission is a "disability" under the ADA, if it would substantially limit a major life activity when active.

29. “Major Life Activities”the ADAAA • Clarifies and expands the category of major life activities that can be substantially impaired. • Provides an illustrative non-exhaustive list of major life activities that the EEOC has not specifically recognized: bending, reading, communicating. • List includes for the first time “major bodily functions.” • One major life activity substantially limited is enough to be considered disabled.

30. “Major Life Activity”Old Standard • The courts had interpreted “major life activity” narrowly to apply to only those functions that were of “central importance to the individual’s daily life.” • Courts were split over whether conditions such as gastrointestinal disorders, cancer, sleep disorders, and heart disease, which often only affect bodily functions without producing any outward limitations, were classified as major life activities.

31. “Major Life Activity”New Standard • The ADAAA specifically adds a non-exclusive list of examples of major life activities, and, in addition to the activities recognized in the regulations promulgated by the EEOC, it adds the following: eating, sleeping, bending, reading, concentrating, thinking, and communicating. • The ADAAA now includes a list of examples of major bodily functions, which are now considered major life activities. • The ADAAA specifically rejects the restrictive interpretation of major life activity used by the U.S. Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

32. “Regarded As” Having an Impairment • Under the ADA, an employee may fall within “disbility” definition if his or her employer: • mistakenly believes that the employee has an impairment that substantially limits a major life activity; or (2) mistakenly believes that an actual non-limiting impairment substantially limits a major life activity. Murray, John E. The ADA AMENDMENTS ACT OF 2008: Redefining Who is Disabled. 81-DEC Wis. Law. 12, 15. (2008).

33. “Regarded As” having an impairmentOld standard • An individual could not be regarded as disabled unless that person was mistakenly perceived to have a condition that prevented or severely restricted the ability to engage in activities of central importance to most people's daily lives. • An individual claiming that he or she was “regarded as” having a disability had to prove that an employer regarded him or her as being “substantially limited in a major life activity.” • very high requirement

34. “Regarded As” Having an ImpairmentNew Standard • The ADAAA stipulates that employees do not have to prove that an impairment actually limits or is perceived to limit a major life activity. Now an individual will be regarded as disabled if he or she was subjected to an action prohibited by the ADA “because of an actual or perceived physical or mental impairment” regardless of whether that impairment actually limited or was perceived to limit a major life activity. • A person also is regarded as disabled if an employer rejects that person because the employer mistakenly believes that a condition disqualifies the person from a particular job. Price, Vedder. Congress Expands ADA Coverage. (2008). 242 U.S.C. § 12102(3)(I).

35. “Regarded As” Having an ImpairmentNew Standard • The ADAAA exempts "minor" and "transitory" impairments from coverage under the ADA's "regarded as" category. Transitory is defined as “an impairment with an actual or expected duration of six months or less.”1 Therefore, impairments that are transitory or minor which have an actual or expected duration of less than six months are not considered disabilities under the “regarded as” prong of the definition of disability. Luongo, Tiffany. The ADA Amendments Act of 2008: Another Effort to Eliminate Discrimination Against the Disabled. (2008)

36. “Regarded As” Having an Impairment -clarified • The ADAAA clarifies that an employer’s duty to accommodate does not extend to those individuals who make discrimination claims under the “regarded as” prong of the definition of disability. • The ADAAA now makes clear that employers have no duty to accommodate individuals who are regarded as disabled. • The new law leaves the employer’s reasonable accommodation obligation unchanged. • The ADAAA makes it clear that employers must provide reasonable accommodation only to individuals who have an impairment that substantially limits a major life activity. Price, Vedder. Congress Expands ADA Coverage. (2008).. Wilson, Stephanie; Krulewicz, E. David. Disabling the ADAAA. New Jersey Lawyer. (2009). Edwards, Margaret H.; Martin, Patrick F.. Congress Tells the Courts How to Interpret the ADA. (2008).

37. Reasonable Accommodation • The definition of reasonable accommodation did not change; however, with a broader definition of disability, more focus will be placed on the employer’s obligations in providing reasonable accommodations.

38. Is the ADAAA Retro-active? Jenkins v. National Board of Medical Examiners, No. 08-5371 (6th Cir. Feb. 11, 2009) • In an unpublished opinion, U.S. Court of Appeals for the 6th Circuit (KY, MI, OH, TN) ruled that the provisions of the ADA Amendments Act apply to a claim brought under the ADA prior to the ADAAA having been enacted. The court found that because the plaintiff sought prospective relief, “no injustice would result from applying the amended law,” and the that ADAAA did not direct that its amendments should not apply to a pending case for prospective relief.

39. 4th Cir. Clarifies When EEOC Decisions are Final • The parties’ dispute turns on a 1999 Amendment to the EEOC regulation that defines a “final decision.” • The government argued that the amendment significantly and fundamentally changed the rules regarding finality by permitting a tolling of the ninety(90) day period only when the EEOC grants an employee’s motion for reconsideration. • Cochran filed a timely motion for reconsideration to the OFO, but that motion was denied. Next, Cochran sought relief in federal court, filing a complaint in the U.S. District Court for the District of Columbia exactly ninety (90) days after the OFO denied his motion for reconsideration. • Court found a timely motion for reconsideration delays the running of the ninety (90) day limitations period.

40. States Not Immune to EEOC Action: 9th Circuit State of Alaska, Office of the Governor, v. EEOC, No. 07-70174 (9th Cir. May 1, 2009) • Facts: Two policymaking employees of the former Alaska Governor's office sued for sexual harassment, sex and race discrimination in pay, and retaliation for opposing harassment. • State argued that GERA violated the 11th Amendment to the extent it purported to strip states of their prior immunity from suits by policymaking members of the governor’s staff. • The Court found that GERA’s reference to states as potential defendants who must answer in damages was clear with respect to state employees’ claims that the state violated their Fourteenth Amendment right to equal protection by engaging in race- and gender-based pay discrimination. • “GERA expressly covers state employees, and expressly gives them a right to collect damages ‘payable by the employer’—the state,” he wrote. “The only way Congress could have been clearer would have been to say ‘this act abrogates state sovereign immunity.’”

41. How ADAAA impacts litigation • The ADAAA expands the definition of disability and almost certainly will increase the number of accommodation requests, disability discrimination charges, and federal lawsuits by employees. Burtka, Allison Torres. ADA Amendments Take Effect, Broadening Disability Protections. 45 JAN Trial 14, 14 (2009). Mathis, Benton J., Morrison, Kelly E.. ADA Amendments and Upcoming Legislation. (2009).

42. ADAAA Litigation • Based on Congress’ intent and the language “the question of whether an individuals impairment is a disability under the ADA should not demand extensive analysis” suggests that courts will be hesitant to dismiss cases on the basis of a finding that the employee has no disability. • Because the ADAAA expands the scope of those protected and broadens the definition of “disabled,” and because the ADAAA specifically directs the attention of the analysis not to be on the individuals disability, it is likely that more ADA cases will end up going to trial rather than being resolved at summary judgment. Luongo, Tiffany. The ADA Amendments Act of 2008: Another Effort to Eliminate Discrimination Against the Disabled. (2008). James, Ben. ADA Changes Will Mean More Cases Go To Trial. (2009).

43. Shift in Focus: Accommodations and Causation • The focus of litigation will shift from whether an individual is disabled, to whether the employer met its obligation of providing a “reasonable accommodation” to an otherwise qualified applicant or employee with a disability, unless the employer can show that the accommodation would impose “undue hardship” on the operation of the business of such covered entity. O’Toole, Daniel; Foster, Jovita. ADA Amendments Expands Protection. Missouri Lawyers Weekly. (2008).