1. ADA in the 21 st Century HR CONFERENCE - DECEMBER 14-15, 2005 Senate Office Building Tallahassee, Florida ADA Working Group

2. Overview The impact of the U.S. Supreme Court decisions on how the ADA is interpreted related to: Constitutionality Construction Definitions Prohibitions/Requirements Defenses

3. The Impact of Supreme Court Decisions Significantly Limited the Number of Individuals Protected by the ADA Given States Immunity From Suits In Federal Court for Money Damages Under Title I of the ADA Restricted Persons with Disabilities' Access to the Courts by Interpreting the ADA's Attorneys' Fees Provision Limited the Remedies Available Under the ADA (and Section 504) Expanded the Defenses Available Under the ADA

4. Constitutionality What the ADA says: Sec. 502. State Immunity. A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

5. Constitutionality What the Supreme Court says: University of Alabama v. Garrett - held that suits in federal court by state employees to recover money damages by reason of the states' failure to comply with Title I of the ADA are barred by the 11th amendment. The Court found that Congress had clearly expressed its intent to abrogate state immunity, but that Congress had not acted pursuant to a valid grant of constitutional authority. Tennessee v. Lane – Held that monetary damage cases can be brought against the state for Title II violations.

6. Construction What the case law says: There is a long series of cases that say civil rights laws should be broadly interpreted to achieve their remedial purposes.

7. Construction What the Supreme Court says about the ADA: Toyota v. Williams - the elements of the definition of “disability” must be strictly interpreted

8. Definition of “Individual with a Disability” What the ADA says: An individual with a physical or mental impairment that substantially limits one or more of the major life activities. An individual with a record of such an impairment. An individual being regarded as having such an impairment.

9. Definition of “Individual with a Disability” What the Supreme Court says: The determination of whether the individual has a substantially limiting disability MUST consider the use, at the time the discrimination allegedly occurred, of mitigating factors.

10. Definition of “Individual with a Disability” Sutton v. United Airlines - Global airline pilot is one job, not a class of jobs because Sutton could have been a regional pilot, instructor or freight pilot; therefore, Sutton was not substantially limited in the major life activity of work. Murphy v. UPS - The requirement that a UPS mechanic be able to drive a commercial vehicle was a single job, not representative of the class of mechanic jobs; therefore, Murphy was not substantially limited in the major life activity of work.

11. Definition of “Individual with a Disability” After Sutton and Murphy: Albertson’s v. Kirkingburg – A difference in how a person performs a major life activity does not make it substantial – how a person has learned to compensate must be taken into account. Toyota v. Williams – The activity must be of central importance to most people’s daily lives.

12. Impact on Lower Court Cases People with various conditions are not meeting the definition because: The condition is managed using mitigating measures The conditions could be controlled by mitigating measures There is no substantial limitation in working There is no substantial limitation in an activity “central to daily living” The conditions are not regarded as meeting the definitions

13. “Regarded as” having a Disability in Lower Court Decisions Cases where the condition was controlled by medication or other mitigating measure: EEOC v. Sara Lee (4 th Circuit) – a machine operator with epilepsy controlled by medication was not covered by ADA Orr v. Wal-Mart Stores (8 th Circuit) – Pharmacist with Type I diabetes controlled by diet and regular insulin injections was not covered Chenoweth v. Hillsborough County (11 th Circuit) – a nurse with focal onset epilepsy controlled by medication was not covered Numerous other cases

14. “Regarded as” having a Disability in Lower Court Decisions Cases where the condition could have been controlled by medication or other mitigating measure: Tangires v. Johns Hopkins Hospital (4 th Circuit) – a hospital employee with asthma who would not take medication because of potential side effects on a pituitary tumor was not substantially limited because the asthma could have been controlled Hewitt v Alcan Aluminum Corp. (New York) – an employee who refused to take medication for post- traumatic stress disorder is not covered because he chose not to avail himself of mitigating measures

15. “Regarded as” having a Disability in Lower Court Decisions Cases where individuals could not show a substantial limitation in the major life activity of working: Duncan v. WMATA (D.C. Circuit) – the plaintiff was fired because of his back condition, who was unable to find comparable work, had to show the number and types of job in the local market that he could not get in order to prove that he was disqualified from a class or broad range of jobs Rhoads v. FDIC (4 th Circuit) – a person with asthma and migraines triggered by smoke was not substantially limited because she was only unable to work in the smoky office

16. “Regarded as” having a Disability in Lower Court Decisions Cases now require plaintiffs to show that they are limited in the performance of “activities central to daily life” Stedman v. Bizmart (Alabama) – the inability to work did not limit the plaintiff sufficiently in activities central to daily life Thornton v. McClatchy (9 th Circuit) – a report with repetitive stress injuries was limited in his work, but not in activities that are central to most people’s lives

17. “Regarded as” having a Disability in Lower Court Decisions Cases related to the definition of “regarded as” having a disability: EEOC v. Rockwell (7 th Circuit) – 70 people who failed nerve conduction tests were not hired because they “might” suffer from neuropathy were not “regarded as” having a disability Sorenson v. University of Utah (10 th Circuit)– a flight nurse with MS was reassigned based on the fear that she would have symptoms that negatively impacted her ability to do the job, despite there being no evidence to support the fear

18. Reasonable Accommodations What the ADA says: Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

19. Reasonable Accommodations What the ADA says: Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

20. Reasonable Accommodations What the Supreme Court says: U.S. Airways v. Barnett - The Supreme Court held that under the Americans with Disabilities Act where an accommodation requested by an employee conflicts with an employer’s established seniority rules, the accommodation is, as a matter of law, not reasonable.

21. Application Process What the ADA says: Permitted: An employer may make pre-employment inquiries into the ability of an applicant to perform job- related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job- related functions. Prohibited: An employer may not conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability.

22. Application Process What the EEOC says: Wal-Mart settlement with the EEOC – pre-employment questionnaire included disability - related information potentially in violation of the ADA

23. Medical Evaluations What the ADA says: An employer may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability.

24. Medical Evaluations What the EEOC says: Burlington Northern and Santa Fe Railway Company (BNSF) settlement with the EEOC – The employer violated the ADA by genetically testing or seeking to test 36 employees without their knowledge or consent as part of a comprehensive diagnostic exam required of employees who file claims of work related carpal tunnel syndrome injuries. Gathering DNA information might be a violation of the ADA.

25. Florida Settlements EEOC v. SCI Funeral Services of Florida, Inc. The defendant refused to promote the individual to a Funeral Director position because it wanted to keep him out of the public eye. When defendant's dispatch manager began to mock individual's manner of speech and insinuate he was mentally disabled, he complained to the supervisors. The complaints were ignored except for a cursory investigation, which concluded that the dispatch manager simply had a harsh management style. Charging Party then filed a discrimination charge and when he could not be persuaded to drop it, he was terminated. The case was resolved by a consent agreement providing Charging Party $270,000 in monetary relief.

26. Defenses What the ADA says: Direct threat defense is only available if the person will pose a direct threat to others

27. Defenses What the Supreme Court says: Chevron v. Echazabal – The Supreme Court held that the direct threat could also be applied when the danger is to the individual with a disability, rather than only another person

28. Americans with Disabilities Act Working Group 4030 Esplanade Way, Suite 315 Tallahassee, FL 32399-0950 850-410-0684 (TTY) 850-487-3423 (Voice) Fax:850-414-8908