The ADAAA The The ADAAA Final Regulations: What You Need to Know

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The ADAAA The The ADAAA Final Regulations
What You Need to Know
PRESENTED BY Mike Birrer mbirrer_at_ccsb.com
214-855-3113 Angelina LaPenotiere alapenot_at_ccsb.c
om 214-855-3095 6.20.11
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ADA Supreme Court Interpretations

• Sutton v. United Airlines Mitigating measures
  must be considered when determining whether an
  impairment substantially limits a major life
  activity.
• Toyota Motor Mfg. v. Williams Substantially
  limits only occurs when the impairment prevents
  or severely restricts the employee from doing
  activities that are of central importance to most
  peoples lives.

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Purpose

• Old To implement the ADA.
• New To implement the ADA and to make it easier
  for people with disabilities to obtain protection
  under the ADA. . . The primary object of
  attention in cases brought under the ADA should
  be whether covered entities have complied with
  their obligations and whether discrimination has
  occurred, not whether the individual meets the
  definition of disability. (1630.1(4)).

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Definition of Disability

• Old Disability means (i) a physical or mental
  impairment that substantially limits one or more
  of the major life activities of such individual
  (ii) a record of such an impairment or (iii)
  being regarded as having such an impairment.
•  
• New Old language
• 1630.2(g)

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Definition of Regarded As

• Old Impairment must be perceived as
  substantially limiting a major life activity.
• New This means that the individual has been
  subjected to an action prohibited by the ADA as
  amended because of an actual or perceived
  impairment that is not both transitory and
  minor. 1630.2(g)(1)(iii)

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More on Regarded As

• Where an individual is not challenging a covered
  entitys failure to make reasonable
  accommodations and does not require a reasonable
  accommodation . . .the evaluation of coverage can
  be made solely under the regarded as prong,
  which does not require a showing of an impairment
  that substantially limits a major life activity
  or a record of such an impairment.
• 1630.2(g)(3)

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Transitory and Minor

• New Transitory and minor is an objective
  standard, and an employer cannot defeat regarded
  as coverage of an individual by demonstrating
  that it subjectively believed the impairment was
  transitory and minor. Transitory is defined as
  lasting or expected to last six months or less.
• 1630.15(f)

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Hypothetical

• Sandy Secretary has an ankle injury that heals
  poorly causing on-going issues. Cathy Clerk has
  a bad case of flu from which it takes two weeks
  to recover. Sandy and Cathy both contend they
  were denied a significant job benefit because of
  their impairments.
• Does Sandy have a potential disability claim?
  (Fleck v. Wilmac, 2011 WL 1899198 (E.D.Pa)
• Does Cathy have a potential disability claim?

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Hypothetical

• Wendy Waitress has burn scars covering one side
  of her face. The scars are fully healed, and
  dont cause any problems. Her employer, Tip-Top
  Restaurant, tells Wendy Our customers have
  been complaining about your scars and find them
  disturbing. We are in a customer service
  business, and so we regrettably have to terminate
  you. Does Wendy have an ADA claim?
• What if Wendy responds, I can get cosmetic
  treatments, but that will require me to be off
  work every Friday for six months. Does Tip-Top
  have to consider this as a request for a
  reasonable accommodation?

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Definition of Physical or Mental Impairment

• Old Any physiological/mental condition or
  disorder, cosmetic disfigurement, or anatomical
  loss affecting certain body systems.
•  
• New Same, but adds immune and circulatory
  systems to non-inclusive list of examples of body
  systems.
• 1630.2(h)

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Definition of Regarded As Disabled

• NPRM A prohibited action based on an actual or
  perceived impairment includes, but is not limited
  to, an action based on a symptom of such
  impairment, or based on medication or any other
  mitigating measure used for such an individual.
  (1630.2(l)(2)).
•  
• New Deletes that statement. Preamble says
  final regulations do not address the issue of
  discrimination based on symptoms or mitigating
  measures under the regarded as prong because
  the issue is too complex. But notes that no
  negative inference should be drawn from removal
  of statement. (Fed. Reg. 16985)

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No Reverse Disability Discrimination

• Final regulations affirmatively establish that an
  individual cannot state a claim that an
  individual with a disability was granted an
  accommodation that was denied to an individual
  without a disability.
• 1630.4(b)

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Hypothetical

• Due to the reasonable accommodation of a physical
  disability, Barry Brown receives a flexible
  schedule allowing him to arrive to work between
  830 am and 930 am. Patti Parent who works in
  the cubicle next to Barry requests the same
  flexible schedule in order to participate in her
  childrens carpool, but the employer says, No!
  She responds That is unlawful discrimination
  and promises a lawsuit.
• Does she have a claim for disability
  discrimination?
• What if she claimed gender discrimination using
  Barry as a comparator?
• What could HR say to Patti in order to explain
  the different decisions?

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Definition of Record of Disability

• Old Having a record of disability.
• New Notes that an individual with a record of a
  substantially limiting impairment may be
  entitled, absent undue hardship, to a reasonable
  accommodation if needed for a past disability.
• 1630.3(k)(3)

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Hypothetical

• Henrietta Hotel was diagnosed with bipolar
  disorder and requested a flexible schedule that
  would allow her to come in two hours late.
  Employer refuses to discuss reasonable
  accommodations, and she is fired for coming to
  work late. Post-termination, she determines she
  was misdiagnosed - simply suffering unusual but
  temporary side effects from allergy medication.
• Does Henrietta satisfy any of the prongs under
  the definition of disability?
• Can she sue based on failure to reasonably
  accommodate?

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Definition of Major Life Activity

• Old caring for oneself, performing manual
  tasks, seeing, hearing, walking, speaking,
  breathing, and working.
•  
• New adds eating, sleeping, standing, sitting,
  reaching, lifting, bending, reading,
  concentrating, thinking, communicating,
  interacting with others, and the operation of a
  number of bodily functions, including the
  operation of an individual organ within a body
  system.
• 1630.2(i)

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Definition of Substantially Limits

• Old Unable to perform a major life activity
  that the average person in the general population
  can perform, or significantly restricted as to
  the condition, manner, or duration under which an
  individual can perform a particular major life
  activity.
•  
• New Nine rules of construction
• 1630.2(j)

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Rules of Construction For Substantially Limits

• i. Term is construed broadly.
• ii. An impairment need not significantly restrict
  the individual from performing a major life
  activity to be substantially limiting.
• iii. Focus of ADA analysis should be on whether
  employer complied with its obligations and
  whether discrimination has occurred, not whether
  impairment substantially limits.
• iv. Individualized assessment necessary, but the
  standard for determining substantially limits
  is lower than the standard applied before the
  ADAAA.
• v. Analysis usually does not require scientific,
  medical, or statistical analysis, though its
  allowed.
• 1630.2(j)

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Rules of Construction For Substantially Limits

• vi. Conduct analysis without regard to positive
  mitigating measures.
• 1630.2(j)
• -- can consider ordinary eyeglasses and
• contact lenses
• -- must consider negative effects of
• mitigating measures

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Hypothetical

• Alvin Air Traffic Controller tells his supervisor
  that he has epilepsy that is fully under control,
  but the medicine makes him tired. So, he wants
  to take 3 twenty minute naps during his shift,
  and asks that they buy a cot and find a quiet
  place to put it.
• Does Doug have a disability?
• Do they have to buy the cot and find a quiet
  place? What should they do?

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Hypothetical

• Lily Lawyer discovered she was dyslexic when she
  was in the 7th grade. By spending extra time
  studying and taking therapy to improve her
  concentration, she managed to graduate Harvard
  undergrad and law with honors. Lily tells her
  employer she needs to come in 2 hours late each
  day. Her employer says no. She says she has
  dyslexia.
• Does Lily have a disability?
• Does her employer have to allow her to come in 2
  hours late each day?

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Rules of Construction For Substantially Limits
(contd)

• vii. Impairments that are episodic or in
  remission are disabilities if they are
  substantially limiting when active.
• 1630.2(j)

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Hypothetical

• Jane Maxwell has asthma that only flares up when
  she is exposed to certain chemical odors, such as
  perfume.
• Does Jane have a disability?

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Rules of Construction ForSubstantially Limits
(contd)

• viii. Impairment that substantially limits one
  major life activity does not need to impact other
  major life activities.
• ix. Effects of an impairment lasting fewer than
  six months can be substantially limiting
  (transitory and minor does not apply here).
• 1630.2(j)

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More on Substantially Limits

• NPRM included lists of impairments that (i)
  will consistently meet the definition of
  disability, (ii) may be disabling for some but
  not others, and (iii) usually not disabilities.
•  
• New Deletes (ii) and (iii), offers new
  suggestions for what major life activity is
  substantially limited with respect to impairments
  in list (i).
• 1630.2(i)(3)(ii)

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More on Substantially Limits

• Old Consider nature and severity of impairment,
  duration or expected duration of impairment, and
  permanent or expected long term impact of
  impairment.
• NPRM Deleted reference to condition, manner,
  and duration.
• New Adds it back and expands to condition
  under which the individual performs the major
  life activity the manner in which the individual
  performs the major life activity and/or the
  duration of time it takes the individual to
  perform the major life activity, or for which the
  individual can perform the major life
  activity. 1630.2(i)(4)(i)

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More on Condition, Manner,and Duration

• New Appendix notes that duration is only one
  factor, and impairments that last only a short
  period of time are typically not covered but may
  be covered if sufficiently severe.
• App. Fed. Reg. 17011

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• Feldman v. Law Enforcement Associates, Corp.,
• 2011 WL 891447 (E.D. N.C.)
• ? Employee suffered mini-stroke
• ? Hospitalized several days, required several
  additional weeks to recover
• ? Court said though impairment was short in
  duration, its effect were severe
• ? Motion to Dismiss denied

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Substantially Limited in Working

• Old Significantly restricted in ability to
  perform either a class of jobs or a broad range
  of jobs in various classes.
•  NPRM Substantially limits an individuals
  ability to perform, or to meet the qualifications
  for, the type of work at issue.
•  New Deleted from regulation, only found in
  appendix. Goes back to class of jobs or broad
  ranges of jobs language, but notes that it will
  be applied in a more straightforward and simple
  manner than they were prior to the ADAAA.
• App. See Fed. Reg. 17013

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Hypothetical

• Barry Bagman has a back condition that limits him
  from lifting more than 50 pounds. His job
  description for baggage handler states that he
  must be able to lift 60 pounds on a regular
  basis.
• Is Barry substantially limited in the major life
  activity of working? Lifting?
• Should the employer engage in an interactive
  dialogue regarding a reasonable accommodation?

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Recent Cases

• Rumbin v. Assoc. of American Medical Colleges,
  2011 WL 1085618 (D. Conn. March 21, 2011) (lack
  of evidence comparing individuals limitations to
  general population)
• Gesegnet v. J.B. Hunt Transport, Inc., 2011 WL
  2119248 (W.D. Ky. May 26, 2011) (evidence that
  impairment was not substantially limiting, but
  court assumes disability anyway)
• Gray v. Walmart Stores, Inc., 2011 1831780 (E.D.
  N.C. May 12, 2011) (Plaintiff fails to provide
  sufficient facts to determine limitation)

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• Thank You!Questions / Answers