The ADA Amendments Act

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The New Disability?
Developed by L. Scott Lissner 10/05/08
DETERMINGING DISABILITY
ACCOMMODATIONS UNDER THE
ADA ADAA
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Presenter

• L. Scott Lissner
• ADA Coordinator, The Ohio State University
• Associate, John Glenn School of Public Policy
• Lecturer, Moritz College of Law, Knowlton School
  Of Architecture Disability Studies at The Ohio
  State University
• Most recent publications
• Universal Design in the Institutional Setting
  Weaving a Philosophy into Campus Planning 2006
  NEA
• From Legal Principles TO Informed Practice J.E.
  Jarrow L.S. Lissner 2005 AHEAD
• BA, Rutgers Univ. MA, Hunter College ABD UVA
• Lissner.2_at_osu.edu

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DISCLAIMERS

• Make It Sound Easy
• I am not an architect
• I am not a lawyer
• Embrace Sgt. Friday The story you are about to
  hear.

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POWERPOINT PRESENTATIONSCAN BE DANGEROUS

• NASA's Columbia Accident Investigation Board
  identified simplistic thinking from an
  over-reliance on PowerPoint presentations as a
  contributing factor in the Columbia shuttle
  disaster.
• (New York Times Magazine 12/14/2003)

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The ADA Amendments Actsof 2008
Public Law 110325 110th Congress An Act To
restore the intent and protections of the
Americans with Disabilities Act of 1990. Be it
enacted by the Senate and House of
Representatives of the United States of America
in Congress assembled, . . . . . .
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CONTEXT

• Sept. 26,1973 Sec. 504 Signed
• April 28, 1977 Sec. 504 Regulations Implemented

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1979 - Southeastern Community College v. Davis
We do not suggest that the line between a lawful
refusal to extend affirmative action and illegal
discrimination against handicapped persons always
will be clear. It is possible to envision
situations where an insistence on continuing past
requirements and practices might arbitrarily
deprive genuinely qualified handicapped persons
of the opportunity to participate in a covered
program. Justice Lewis Powell
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1987 - Arline v. Nassau County
"Congress acknowledged that society's accumulated
myths and fears about disability and disease are
as handicapping as are the physical limitations
that flow from actual impairment. Justice
William J. Brennan 1987
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• 1990 The Signing of The ADA

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• 1999 Sutton Trilogy (Sutton, Murphy
  Kirkingburg)
• 2002 Toyota v. Williams

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• 2007 ADA Restoration Act Introduced
• June 2008 Compromise Language Reached on
  Substantially Limited
• Changed to the ADA Amendments Act
• Passed 402-17 in the House

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• August 2008 Senate Changes Language
• Markedly Restricted Back to Substantially Limited
• Passed unanimously
• New Version Accepted by House Sept. 18

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• September 2008 Signed by Pres. Bush
• January 1, 2009 implementation

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Summary of the Findings

• Congress intended the ADA to be broadly construed
• Congress based the ADAs definition of disability
  on Section 504 of the Rehabilitation Act because
  of the broad construction represented by Arline
  v. Nassau County School Board
• The Supreme Courts decisions in the Sutton
  trilogy and Toyota construed the term disability
  too narrowly.

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Summary of the Purposes

• Restore the broad protections of the ADA was
  intended to provide
• Reject the Courts reasoning in the Sutton
  Trilogy that mitigating measures should be
  considered as part of determining disability
• Reject the Courts holding in Toyota that the ADA
  requires a demanding standard that an impairment
  severely restrict a major life activities

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Definition of Disability

• A physical or mental impairment that
  substantially limits a major life activity
• A record of such an impairment
• Being regarded as having such an impairment

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What is Substantial?

• Broad Construction (not Toyota)
• Exclude ameliorative impact of mitigating
  Measures
• Medication, medical equipment, prosthetics
• Standard eyeglass exception
• Assistive technologies
• Compensatory strategies and accommodations.
• Episodic conditions or those in remission
• If it substantially limits when active

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Limited in What Way?

• Manner
• Condition
• Duration
• Compared to the Average Person

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Major Life Activities

• Includes but not limited to, caring for oneself,
  performing manual tasks, seeing, hearing, eating,
  sleeping, walking, standing, lifting, bending,
  speaking, breathing, learning, reading,
  concentrating, thinking, communicating, and
  working.

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Major Life Activities also include the
operation of major bodily functions including but
not limited to

• Immune
• Respiratory
• Circulatory
• Endocrine
• Digestive
• Reproductive

• Neurological
• Brain
• Normal Cell Growth
• Bowel
• Bladder

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Has a condition or is Regarded As

• Broad Construction
• Focus on the substantive issues of failure to
  accommodate or exclusion not class membership
• Excludes transitory (lt6 months) or minor
• Not entitled to accommodations

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Also of Note

• Discrimination on the basis of disability
• No reverse discrimination
• Changes Section 504 to match
• Does not change the definition of reasonable
  accommodation
• Does not impact the use of rationally based
  qualification standards

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How to respond to the ADAAAs Implementation

• REVIEW
• Policies to reference ADAAA
• Accommodation request process
• Documentation requirements
• Determining essential functions
• Determining accommodations
• Available resources

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COVERED ENTITITES

• Title I Employers with 15 or more workers
• Title II State Local Govt.
• Title III Public Accommodations
• Prohibits discrimination on the basis of
  disability in programs, benefits and services.
• Requires the provision of reasonable
  accommodations
• Facilities (new construction, renovation
  barrier removal)

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Non-Discrimination

• Has a disability
• Record of a disability
• Regarded as having a disability
• Relationship or association with someone who has
  a disability.

Reasonable Accommodation

• Individuals with disabilities

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Aspects Of Employment

• Advertising
• Recruitment
• Hiring Terminations
• Compensation
• Assignment

• Transfer Promotion
• Technology Tools,
• Testing Communications
• Professional Development
• Pay
• Benefits

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The Law applies to provision of all programs and
services including

• Recruitment
• Admissions
• Instruction
• Housing
• Research
• Financial Aid
• Job Placement
• Internships

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Law applies to provision.

• Counseling
• Intramurals
• Athletics
• Transportation
• Employment
• Events (Visitors)
• Internet Services
• Student Organizations

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Some examples of covered disabilities

• Epilepsy
• Paralysis
• HIV/AIDS
• ADD/ADHD
• Hearing or visual impairment
• Psychological conditions
• Specific learning disability
• Back/orthopedic conditions
• Diabetes
• Morbid obesity

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Documenting Disability

• Ask For What You Need
• Impairment
• Impact related to work place needs
• Recommended adaptations

• Who Determines Disability
• Interactive process
• Decision maker of first resort
• Grievance process

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Maintaining Documentation

• Confidentiality
• Not covered by HIPPA
• Not main file
• Who Needs to Know
• Enough to implement
• Safety/Evacuation Issues
• Complaint investigators

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Not generally covered

• Minor non-chronic conditions of short duration
• Simple physical characteristics
• Common personality traits
• Environmental, cultural or economic disadvantages
• Interpersonal allergies

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Who is a Qualified Individual?

• To determine if a person is a qualified
  individual, ask two questions
• Does the person meet the necessary
  pre-requisites?
• Can the person perform the essential functions,
  with or with accommodation?
• Are the accommodations reasonable?

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What Is An Accommodation?

• Modifications to policy practice
• An aid, tool, technology, interpreter, etc., that
  helps the individual with a disability to
  overcome a barrier
• Modifications to the environment

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Safety Considerations

• The nature, severity and duration of the
  potential harm
• The likelihood that the potential harm will
  occur
• The imminence of the potential harm and
• The potential for reasonable accommodations to
  mitigate the risk.

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Reasonable Accommodation

• Rationally Related to the impacts of the
  disability
• Assists in the effective performance of the
  essential functions
• Makes it possible for an individual with a
  disability to enjoy an equal participation or
  employment opportunity

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Reasonable Accommodation

• Does not present an undue burden
• Safety
• Business necessity
• Administrative burden
• Financial burden

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Essential Elements Functions?

• The fundamental or core goals of the program or
  position
• Focus on the purpose and result, rather than the
  manner in which it is performed
• Credentials
• Do not include marginal functions or secondary
  benefits
• Documentation and Practice
• Job/Course descriptions
• Creation documents
• Past exceptions

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Evidence For Essential Functions

• Written descriptions prepared in advance of the
  accommodation questions
• Consequences
• Amount of time spent on the task
• Experience of current or former incumbents
• The employer/faculty judgment with rational basis
• Terms of a collective bargaining agreement
• Certification and licensure

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Deference

• Academic institutions, making academic decisions,
  within their areas of expertise, will receive
  substantial deference from the courts, DOJ OCR
  (Michigan v. Ewing)
• Deference is earned through adherence to a
  diligent consideration of the request and
  alternative means to achieving the fundamental
  program objective, resulting in a rationally
  justifiable conclusion (Wynne v. Tufts,
  Guckenberger v. Boston University, Wong v.
  Regents of California)
• Mere reliance upon tradition or existing rules
  may well not be a sufficient justification for
  refusing to implement a requested accommodation
  (Southeastern v. Davis PGA v. Martin)

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Special Cases

• Performance Evaluations
• Pre Post accommodation
• Oh! That is because of..
• Evaluating the Effectiveness of accommodations

• Disciplinary Action
• - Conduct is conduct
• - Failure to accommodate
• - Extenuating circumstances

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RESOURCES

• OSU ADA COORDINAOTOR
• HTTP//ADA.OSU.EDU
• E-MAIL ADA-OSU_at_OSU.EDU
• Disability Law Lowdown 20 Employee Performance
• Discussion of the Equal Employment Opportunity
  Commissions new guidelines on applying
  performance standards to employees with
  disabilities under the Americans with
  Disabilities Act. (QuickTime also available on
  ITunes)
• http//dll.ada-podcasts.com/shownotes/DLLPod20.ph
  p
• Disability Law Lowdown 21 - Employee Conduct
  Discussion of the EEOCs guidance on applying
  conduct standards to employees with disabilities
  under the Americans with Disabilities Act.
  (QuickTime also available on ITunes)
• http//dll.ada-podcasts.com/shownotes/DLLPod21.php
  

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Resources

• ADA Amendments Act http//frwebgate.access.gpo.gov
  /cgi-bin/getdoc.cgi?dbname110_cong_billsdocidf
  s3406enr.txt.pdf
• EEOC ADAAA Notice http//www.eeoc.gov/ada/amendmen
  ts_notice.html
• Disability Law Lowdown ADAAA Episode
• http//dll.ada-podcasts.com/shownotes/DLLPod18
  .php
• AHEAD Government Relations http//www.ahead.org/re
  sources/government-relations

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Resources

• DBTAC Webcast Episode Archive http//www.ilru.org/
  html/training/webcasts/archive/2008/11-19-AM.html
  
• ADA Legal Webinar Archive http//www.onlineconfere
  ncingsystems.com/sedbtac_1/102808/
• American Association of People with Disabilities
  ADAAA Site http//aapd.com/AAPDRedesign/Advocacy/L
  egislativePrioritiesfront.html
• Georgetown Universitys ADA Archive
  http//www.law.georgetown.edu/archiveada/

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CITATIONS

• Southeastern Community College v. Davis, 442 U.S.
  397, 406, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979)
  
• School Bd. of Nassau County v. Arline, 480 U.S.
  273, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987)
• Sutton v. United Airlines, Inc., 527 U.S. 471
  (1999)
• Murphy v. United Parcel Service, Inc., 527 U.S.
  516 (1999)
• Albertsons, Inc. v. Kirkingburg, 527 U.S. 555
  (1999).

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• Wynne v. Tufts University School of Medicine,
  976 F.2d 791 (1st Cir. 1992)
• Bartlett v. New York State Board of Law
  Examiners, 970 F. Supp. 1094 S.D.N.Y. 1997)
  (Bartlett I) affd 2 F. Supp. 2d 388 (S.D.N.Y.
  1997) (Bartlett II) affd in part, revd
  remanded in part, 156 F. 3d 321 (2d Cir.
  1998)(Bartlett III) vacated and remanded, 119
  S.Ct. 2388 (1999)(Bartlett IV) affd in part
  remanded, 226 F. 3d 69 (2d Cir. 2000)(Bartlett
  V) 2001 WL 930792 (S.D.N.Y. Aug. 15, 2001)
  (Bartlett VI)