Is Anyone Not Disabled? Presented by: Jeanne M. Kincaid Copyright 2011 Drummond Woodsum. All rights expressly reserved.

CAVEAT!  This presentation addresses legal requirements and analysis of federal disability laws  Your state (and perhaps local) government may have laws/rules that more broadly protect the rights of individuals with disabilities 2

The ADAAA  Effective January 1, 2009, Congress significantly expanded both Section 504 of the Rehabilitation Act and the ADA  The Equal Employment Opportunity Commission issued final regulations effective May 24, 2011 to reflect these changes in the employment context  29 C.F.R. Part

What Congress Did Not Do  With limited exceptions, Congress did not alter any of the other ADA provisions governing ADA provisions such as: Essential functions Reasonable accommodations Qualification requirements of employment and student participation 4

5 Individual With a Disability Persons who: Have a physical or mental impairment which substantially limits a major life activity Have a record of such an impairment which substantially limits a major life activity Are regarded as having a physical or mental impairment

Regarded As Disabled  No requirement that the impairment substantially limits a major life activity So long as it lasts or is expected to last more than six months and is not transitory and minor  The myth/stereotype approach is eliminated  But to bring a claim under “regarded as” it must be a “prohibited” action 6

7 Three Elements  Impairment  Major life activity  Substantial limitation

The Impairment Prong  Is assessed by documentation Provided by the employee/student  Purpose: To determine disability status To determine appropriate accommodations  Caveat: Do not demand more than is needed 8

9 Remember  Not all performance issues are impairment based

10 The Major Life Activities Prong  Caring for oneself  Performing manual tasks  Seeing  Hearing  Eating  Sleeping  Walking  Standing  Lifting  Bending  Speaking  Breathing  Learning  Reading  Concentrating  Thinking  Communicating  Working  The operation of a major bodily function

The EEOC Expansion  Sitting  Reaching  Interacting with others 11

The List Is Not Exhaustive  The key word here is MAJOR 12

13 The Substantially Limits Prong  Either unable to perform, or  Substantially limited in the condition, manner or duration of performing the major life activity in comparison to most people in the general population  EEOC regulation

Caution  The EEOC attempted to tackle “learning disabilities” which are by definition measured against one’s potential rather than others  The EEOC kept the “most people” standard but reinforced that mitigating measures must be disregarded in the assessment/analysis 14

What It Is Not  An institution may not require evidence that the condition prevents, severely or significantly restricts a major life activity  Our view: If the limitation’s effect on a major life activity is slight, mild or moderate, it is not enough But you be the judge 15

16 But wait...  An institution may not consider the positive effects of mitigating measures, such as medication, hearing aids “learned behavioral or adaptive neurological modifications”, medical equipment, reasonable accommodations or other interventions, except for the use of ordinary eyeglasses or contact lenses.

EEOC Expansion of Mitigating Measures  Psychotherapy  Physical therapy  Behavioral therapy And again, the list is not exhaustive 17

Mitigating Measures Refused?  According to the EEOC, an employer may not consider the effects of an employee’s refusal to use mitigating measures in determining disability status  Example: if an employee refuses to take prescribed medication But may consider in the “qualified” or “direct threat” analysis 18

And Just What Are Eyeglasses?  The EEOC rejected the Wal-Mart defense  Do not consider where they were bought or how they look  Defined: “lenses that are intended to fully correct visual acuity or to eliminate refractive error.” 19

The Mitigating Measures Trap  Remember, positive mitigating measures should not be considered on the question of disability status  However, mitigating measures can (and arguably should/must) be considered at the accommodation stage 20

21 Intermittent or in Remission  Intermittent conditions or conditions in remission qualify as disabilities if substantially limiting in their active state Rather standard-less

22 Temporary Conditions  Very confusing area  The EEOC refused to adopt a six month durational standard  Pregnancy? If pregnancy-related impairment, could be

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24 Result  It should be relatively easy, with proper documentation, for an employee/student to establish that s/he has a disability

Kincaid Tip  If an institution is going to deny that the individual is disabled – hesitate – and be able to articulate for yourselves a fairly clear rationale 25

Most Battles  Should be fought on the accommodation front Are any accommodations necessary and reasonable to provide equal access? 26

Accommodations & 3 Standards  “Actually” disabled May or may not require accommodation  “Record of” disabled May or may not require accommodation  Lone EEOC example cited: leave/schedule change for follow up  OCR has historically said no accommodation  “Regarded as” disabled No right to accommodation 27

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