The ADAAA and its Regulations: A Substantial Change in Focus Presented By: William L. Duda May 13, 2011

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Background The Americans with Disabilities Act (ADA) enacted in 1990 Referred to as “a mandate for the elimination of discrimination against individuals with disabilities” Prohibiting discrimination and requiring reasonable accommodation for qualified individuals with disabilities Courts and lawyers spent a great deal of time focusing on whether individuals were covered under the ADA’s definition of “disability”

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST The U.S. Supreme Court, in two landmark cases, interpreted the coverage provisions of the ADA narrowly Sutton v. United Air Lines (1999) – disabilities measured after mitigating measures Toyota v. Williams (2002) – strict interpretation of “substantially limits” and “major life activity” = “demanding standard” for coverage Congress took action to clearly state Congress’ intent for broad coverage and protection under the ADA Background

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST ADA Amendments Act of 2008 Passed by Congress on September 25, 2008 (effective January 1, 2009) Expressed clear intent that the ADA be interpreted broadly for coverage The EEOC’s current regulations were inconsistent with Congress’ intent Legislatively overturned the narrowing coverage effect of Sutton and Toyota

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Bottom line – Congress wanted more people protected by the ADA Directed the EEOC to promulgate new regulations to implement their intent Not retroactive, but ongoing or prior reasonable accommodation considerations affected ADA Amendments Act of 2008

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST The Regulatory Process EEOC issues proposed regulations on September 23, 2009 In the 60-day comment period, the EEOC received over 600 public comments EEOC utilized a four-city “listening tour” to gather further input on the proposed regulations Final regulations and interpretive guidance issued on March 25, 2011 (effective May 24, 2011)

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Meanwhile…. ADA charge filing with the EEOC increases 25,165 ADA-related charges in FY ,451 in FY ,453 in FY 25.2% of all charges filed in FY 2010 ADA overtook ADEA for #4 on the list (retaliation, race, sex, disability, age)

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Final Regulations - Themes Simplify and broaden coverage under “disability” Focus on discrimination and reasonable accommodation, not “disability” Emphasis on the “regarded as” prong for enforcement

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST “Disability” – 42 U.S.C. § 12102(1) Same definition – different interpretations Still three ways to satisfy the definition: Physical or mental impairment that substantially limits one or more major life activities A record of such an impairment Being regarded as having such an impairment

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST “Substantially Limits” – Rules of Construction 42 U.S.C. § 12102(4) and 29 C.F.R. § (j) Nine (9) rules of construction 1. Broadly, in favor of expansive coverage 2. Compare to “most people in the general population”  Condition, manner and duration, not outcome 3. Employer obligations are primary, not coverage 4. Individualized assessments still apply 5. Scientific, medical or statistical analysis rarely needed

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST “Substantially Limits” – Rules of Construction 42 U.S.C. § 12102(4) and 29 C.F.R. § (j) Nine (9) rules of construction (cont.) 6. Do not consider ameliorative effects of mitigating measures (except glasses/contacts)  Except for measuring qualifications or direct threats 7. Episodic conditions or those in remission measured by their limitations when active 8. Impairment of one major life activity enough 9. No 6-month minimum – only in “regarded as” cases

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Major Bodily Functions = Major Life Activities 42 U.S.C. § 12102(2)(B) & 29 C.F.R. § (i)* “Major bodily functions” include, but are not limited to: Functions of the immune system Special sense organs and skin Normal cell growth Digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic,* lymphatic,* musculoskeletal,* and reproductive functions

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST “Major Life Activities” - 42 U.S.C. § 12102(2)(A) Caring for oneself Performing manual tasks Seeing Hearing Eating* (* = new) Sleeping* Walking Standing* Sitting* Reaching* Lifting* Bending* Speaking Breathing Learning Reading* Concentrating* Thinking* Communicating* Interacting with others* Working*

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST EEOC Examples of “Disabilities” 29 C.F.R. § (j)(3)(iii) Missing limbs Autism Cancer Cerebral palsy Diabetes Epilepsy HIV or AIDS Multiple sclerosis Deafness Blindness Intellectual disability Bipolar disability Post-traumatic stress disorder Obsessive compulsive disorder Schizophrenia Muscular dystrophy Major depressive disorder Mobility impairments

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST “Regarded As” Protection Impairment Only Standard 42 U.S.C.§ 42102(3) Then: Employer must regard the individual as having an impairment that renders the individual “substantially limited” in a “major life activity” Now: If employer perceives the individual as having an impairment It does not matter whether the impairment is perceived to or actually “limits” a “major life activity”

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST No “Regarded As” Coverage for Transitory and Minor Impairments “Transitory” means lasting or expected to last for six months or less No definition of “minor,” although the Revised Interpretive Guidance makes reference to common ailments such as a cold, the flu, broken bones, or gastro-intestinal (non-chronic) The “transitory and minor” defense does not apply to claims under the “actual” or “record of” prongs of the definition of disability

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST What Has Not Changed? Individuals must still be qualified to perform the essential functions of a job, with or without reasonable accommodation Direct threat defense – substantial likelihood of significant harm Reasonable accommodation standard

EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Result of ADA Amendments More employees considered “disabled” Emphasis on reasonable accommodation and “interactive process” Essential job functions critical Harder to prevail on summary judgment Disability case will look and feel more like Title VII or ADEA cases

The ADAAA and its Regulations: A Substantial Change in Focus Presented By: William L. Duda May 13, 2011