Recoverin

g Lost
Ground!
The ADA
Amendments
Act of 2008
Presented by
Don Brandon
DBTAC Northwest
&
Jason Burke
State ADA Coordinator
 AGENDA
• Appraisal of How Civil Rights Laws
Are Formulated
• How The Definition of Disability
Was Built
• ADA 1990 & 1991 Changes
• The Supreme Court Decisions That
Narrowed Protections
• ADAAA 2008 Definition of Disability
Tune-Up
• Practical Impact on Human
Resources Management
 INTRODUCTION

The ADA Is A Civil

Rights Law.
 ADA’s Purpose
The ADA Was Supposed To
Focus Primarily On Whether
A Covered Entity Engaged In
Discrimination On The Basis
Of Disability; Not Require An
Extensive Analysis
Regarding The Nature Of The
Individual’s Disability.
Civil Rights Laws are Formula
Driven
X + Y - 2 = 10
6 + 6 - 2 = 10
7 + 5 - 2 = 10
9 + 3 - 2 = 10
8 + 4 - 2 = 10
Reasonable
Accommodation
 F
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air
ea
Ac s on
• E com ab
s s m le
•P en od
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• I ogr ia l at io
nd am Fun n
Ca ivi d Mo ct io
se u al dif n
/ C ica
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-by n
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•W
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• Re rker’
•M li g i
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o
EQUALITY

ino ous G mp
•W r rou
om ities ps
en
Sa
me
General Rule – The ADAAA
It is Against the Law to
Discriminate Against a
Qualified Individual on the
Basis of Disability, Who can
Perform the Essential
Functions of a Job, With or
 ADA Formula
• Not What to Think
• But How to Think
Process
• To Create Equal
Opportunity

GR + (CUH [+ or -] CDT) EO
= GFC
 (Old Definition Of Disability)
A Pers on W ith A
Di sa bility is:

• Someone -with... a physical or

mental impairment, that
substantially limits a major life WC
ADA

activity. FMLA

• Someone who -has a record of...

• Someone who - is regarded as...
Substantial Limitation
When an Impairment
Prevents an Individual from
Performing a MLA or
Significantly Restricts the
Condition, Manner, or
Duration Under Which an
Individual can Perform a
MLA, as Compared to the
Average Person in the
 EEOC Regulations Of 1991
• Created Higher
Threshold for
Disability
• “Substantial”
• Mitigating Measures
Not A Factor
• Sutton Trilogy
Removed Mitigation
• Measures & Made
8 Major Life Activities - Not Exhaustive
Them
List A Factor
• Determination of Disability An
Employer Decision
 Supreme
Court
Sutton Changes to
Trilogy
Toyota v
Williams Definitions
• Not Disabled
Enough
• Disability
Discrimination
Rarely Explored
• 16 Examples
Case Scenarios
Impact of Supreme Court
Decisions
• Penalized For
Successful
Management of
Disability
• Disability
Discrimination
Rarely Explored
 ADA Definition 1990
– Congress Modeled After After 504
Case law
– Functional Definition With 3 Prongs
– Practically - Was A Manageable
Definition
– Legally - Definition Was Vulnerable
• Denial of Disability in Society
• Framework for Interpreting Disability
Law Based in Worker Comp & Social
Security
• EEOC Guidance on Substantial
Limitation Followed National Mores
 Impact of Supreme Court
Ruling & Mitigating
Measures (Sutton v UA)
• Orr v. Wal Mart
• Todd v .Academy Corp
• Epstein v Kalvin-Miller INC
• Eckhaus v. Consolidated Rail
Corp
• Schriner v. Sysco Food Serv.
• McMullin v. Ashcroft
Supreme Court Ruling (Toyota vs
Williams)
Of Substantial Limitation On Major
Life Activity
• Mclure v. GM Corp
• EEOC v. Sara Lee Corp
• Williams v. Cars Collision
Ctr.
• Phillips v. Wal Mart Inc
• Tockes v. Air-land Transport
• Pimentaal v. Dartmouth-
Hitchcock Clinic
• Didier v. Schwan Food Co.
• Littleton V. Wal Mart
 16 Court Cases That Demonstrate
Failure of Legal Construct of ADA
DD of 1990
• Orr v. Wal Mart • Mclure v. GM Corp
• Todd v .Academy • EEORC v. Sara Lee
Corp Corp
• Epstein v Kalvin- • Williams v. Cars
Miller INC Collision Ctr.
• Eckhaus v. • Phillips v. Wal Mart
Consolidated Rail Inc
Corp • Tockes v. Air-land
• Schriner v. Sysco Transport
Food Serv. • Pimentaal v.
• McMullin v. Ashcroft Dartmouth-
 ADA
Definition of Disability
Courts Narrowed
Why Was Definition
The
ADAAA
Needed? Congress Acted
Revised Definition of
Disability
ADAAA
 THE ADAAA Restores The
Original Intent Of The ADA By

• Reinstating The Broad Scope Of

Protection;
• Moving The Focus From The
Threshold Issue Of Disability To
The Primary Issue Of
Discrimination; And
• Reaffirming That Although The
Definition Of Disability Is
Intended To Be Broad, Only
 ADAAA Changes The
Structure Of The ADA
Definition of Disability
Focus Is On Merits Of The
Case I.E., Whether A Covered
Entity Engaged In
Discrimination Against A
Qualified Individual On The
Basis Of Disability Rather
Than Threshold Question Of
Whether The Individual Was
 PURPOSES OF THE ADAAA
• Retaining The Existing Definition Of The
Term “Disability” But Clarifying The Key
Words And Phrases;
• Changing The Structure Of The Law To
Focus On Discrimination;
• Including Construction Clauses To Explain
Intent;
• Authorizing Federal Agencies To Regulate
The Definition Of “Disability”; And
• Including Conforming Amendments
Regarding Title V Of The Rehabilitation Act.
A Person With A Disability
Is:
Someone:
•with … ADA
a physical or
mental
impairment
that
substantially
limits a major
F WC
life activity.
MLA
•has a record of …
DEFINITION OF DISABILITY
PRONG 2 (Record Or
History Of Impairment)
• No Change To Current Law Or
Regulatory Interpretation.
 DEFINITION OF DISABILITY
PRONG 3 (Regarded As
Having An Impairment)
• Individuals Not Subject To Functional Test.
• Individual Must Prove Adverse Action Taken
Because Of An Actual Or Perceived
Impairment.
• Does Not Include Transitory And Minor
Impairments.
• Covered Entities Not Required To Make
Reasonable Accommodations Or
 CONSTRUCTION CLAUSES
• Workers Compensation And
Other Disability Benefit
Programs Not Affected.
• Fundamental Alteration
Defense Not Affected.
• Reverse Discrimination
Claims Not Authorized.
Re-Expansions Of Definition of
Disability (DD) Via ADAAA

• More Like Civil Rights Act, Only

Affected the DD
• Retains Same Wording in Definition
of Disability
• Redefines Or Sets New Parameters
on How DD to Be Interpreted
• 17 Major Life Activities & 9 Bodily
Functions
• Corrective Vision Not Covered
Unless…
• Mitigation Measures Not To Be
Considered
 Examples of Major Life
Activities
• Learning • Walking
• Thinking • Seeing
• Concentratin • Breathing
g • Hearing
• Interacting • Sleeping
with Others • Working
• Caring for
• Not an Exhaustive
Oneself
List
• Speaking
• Performing
Manual
 Examples of Major Bodily
Functions
Functions of:
– The Immune System,
– Normal Cell Growth,
– Digestive,
– Bowel, Bladder,
– Neurological, Brain,
– Respiratory, Circulatory,
– Endocrine And Reproductive
Functions
Substantial Limitation
Redefined
• New Boundaries Less
Restrictive Qualification of
Disability
• Corrected Supreme Court
Cases
• Corrected or Lowered the
EEOC Bar for Substantial
• Almost Regulatory in Scope
 Impact Employment
Policy
and HR Management
• Less Diagnostic Measurement
by Employer and the Courts
• Focus on Discrimination of
Qualified individuals and
Refusal To Accommodate
• Understanding Reasonable
Accommodation (RA) As a
Process
• Interactive Process and The RA
 Major Life Activities &
Bodily Functions
• Don’t Be Frightened by the
List
• ADA Always Intended Broad
Coverage
 Old 3 Part Test - New 4
Part Test
ADA 1990 Courts Used a 3 Part
Test
1. Physical or Mental Impairment
2. Substantial Limitation
3. Major Life Activates

ADA AA 2008 Courts Will Use A 4

Part Test
1. Evidence Of Membership In a
Protected Class
2. Subjected To Adverse Employment
 What This Means for
Employers
• Organizations That Have Been Complying
With The Original Intent Of The ADA Will
Likely Be Unaffected Since The ADAAA
Merely Restores That Original Intent And
More Clearly Defines Disability.
• Existing Policies And Procedures, Including
Written Ones, Should Be Reviewed And
Updated To Ensure They Are In Compliance
With The ADA andd This Act, Especially
Given That More Conditions Are Now
Explicitly Considered Disabilities.
• Reasonable Accommodations Are Only
Required To Be Provided To Individuals
Who Have, Either Currently Or A Record Of,
 FINAL THOUGHTS FOR
EMPLOYERS
• Treat all employees with dignity and
respect
• Recognize that the definition of
disability is broad but only qualified
individuals who can prove
discrimination are entitled to relief
• Adopt an interactive process
• Train and retrain all staff
• Develop disability expertise
• Document decisions
 HR Intensive Elements of
Good Faith
• ID Essential Functions
of the Job
• Interaction with
Employee
• Consideration of ADA
Qualifying Event
• Consideration of
Affordability & Impact
On Workplace
• Problem Resolution of
RA
 What This Means for
Individuals and Employees
with Disabilities
• Overall, The ADAAA Will Restore
Protections Against Disability
Discrimination To A Broader Range Of
Individuals Including Those With
Mental Illness, Epilepsy, Muscular
Dystrophy, Cancer, Diabetes,
Cerebral Palsy And Perceived
Disabilities.
• Substantially Limits Now Needs To Be
Interpreted Less Severely With
Regards To Effect On A Major Life
Activity.
 FINAL THOUGHTS FOR
INDIVIDUALS WITH
DISABILITIES

• Know Your Rights And

Responsibilities
• Pursue Jobs For Which You Are
Qualified
• Engage In An Interactive Process
• Document Your Qualifications
And Adverse Actions Taken By
 Why Was
The ADAAA
Needed?
Definition of Disability

EEOC & Courts Narrowed

Definition

Congress Acted
Revised How Definition
of Disability To Be
Interpretted
ADAAA
 Resources

DBTAC Northwest
800-949 4232
www.dbtacnorthwest.org

Job Accommodation
Network (JAN)
800-526-7234
www.jan.wvu.edu
Thank You
 What’s New Or Different
About The Definition Of
Disability
The ADAA Retains Without
Amendment The Existing
Definition Of The Term
“Disability” But Clarifies
The Key Words And
Phrases In The Definition.
41
 In Washington
State…
The
Definition
of
Disability
is Broader
than in
the ADA
• Temporary Conditions are Covered
• A Condition Does Not Have to Impact a Major Life Activity
• A Condition Does Not Have to be Substantially Limiting