IMPLEMENTING THE AMERICAN WITH DISABILITIES ACT AMENDMENTS ACT OF Summer 2011

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1 IMPLEMENTING THE AMERICAN WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 Summer 2011 Written by Lathrop & Clark LLP, WASB Legal Counsel The Americans with Disabilities Act (ADA) was signed into law on July 26, In enacting the ADA, Congress intended to provide a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities. At that time, Congress also intended to provide clear and consistent standards to address discrimination against individuals with disabilities. However, since 1990, courts frequently did not apply the ADA s standards consistently. In particular, two decisions by the United States Supreme Court, Sutton v. United Air Lines, Inc. 2 and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 3 prompted Congress to conclude that the courts had narrowed the broad scope of protection intended to be afforded by the ADA. 4 In response to the narrow interpretations by the courts, Congress enacted the ADA Amendments Act of 2008 (ADA Amendments Act), which took effect on January 1, The ADA Amendments Act makes significant changes to the ADA and is intended to carry out the ADA s objectives by reinstating a broad scope of protection to be available under the ADA. Under the ADA Amendments Act, Congress also directed the United States Equal Employment Opportunity Commission (EEOC), the agency charged with administering and enforcing the ADA, to revise the ADA regulations to comply with the changes to the law. The EEOC released the new regulations in final form on March 25, This Legal Notes reviews the changes to the ADA resulting from the ADA Amendments Act, examines the new EEOC regulations, and explores an employer s obligations under these new laws and regulations. 5 Americans with Disabilities Act Congress enacted the ADA in order to protect some 43,000,000 Americans with one or more physical or mental disabilities. Congress explained that individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society. 6 The ADA offered new protections to individuals with disabilities in the areas of employment, public services, and public accommodations.

2 In particular, Title I of the ADA made it unlawful for private employers, state and local governments, employment agencies, and labor unions to discriminate against qualified individuals with disabilities because of their disabilities in all aspects of the employment relationship, including, but not limited to, the application process, hiring, firing, advancement, compensation, and job training. The ADA also required employers to provide a reasonable accommodation to a qualified individual with a disability, so as to allow the individual the opportunity to perform the essential functions of the job. Under the ADA, a qualified individual with a disability was defined as an individual with a disability who, with or without an accommodation, could perform the essential functions of the job. There were three ways in which an individual could be considered to have a disability, as defined by the ADA. First, the individual could have a physical or mental impairment that substantially limits one or more major life activities. Second, the individual could have a record of such an impairment. Lastly, the individual could be regarded as having such impairment. 7 The terms substantially limits and major life activities were not defined in the original version of the ADA. Originally, the EEOC issued regulations to assist in interpreting and applying the ADA. Within the regulations, the EEOC suggested that a major life activity included walking, seeing, hearing, and performing manual tasks. The EEOC also identified three factors to be considered when determining whether an individual should be classified as a qualified individual with a disability. Those factors were: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact of or resulting from the impairment. 8 Neither the ADA, nor the accompanying regulations, identified a specific diagnosis or impairment that would always constitute a disability. The courts were left with the responsibility of determining whether an individual satisfied the definition of a qualified individual with a disability under the ADA. Interpretations of the ADA by the United States Supreme Court Following the enactment of the ADA, the Supreme Court had an opportunity to interpret the ADA in two significant cases. One case, Sutton, involved severely myopic twin sisters who applied to work for United Air Lines as commercial airline pilots. United Air Lines denied their application because they did not meet the minimum requirement of uncorrected visual acuity of 20/100 or better. Their application was denied even though with corrective measures the sisters functioned identically to individuals without similar impairments. The sisters filed suit against United Air Lines alleging that the refusal to hire them violated the ADA. The Supreme Court upheld the lower courts dismissal of their claims. According to the Supreme Court, an individual whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently substantially limits a major life activity. As a result, the Supreme Court held that the sisters were not disabled within the meaning of the ADA. Moreover, the Supreme Court rejected the claim by the sisters that they were regarded as disabled under the ADA. The other significant Supreme Court case interpreting the ADA, Toyota Motor, involved an employee, Ella Williams, who worked on an assembly line in Toyota s manufacturing plant. 2

3 She developed pain in her hands, wrists, and arms and was diagnosed with impairments including carpal tunnel syndrome. She was then reassigned to various quality-control inspection jobs. Her condition worsened, and Ms. Williams claimed that Toyota refused a request by her for an accommodation. Toyota, however, asserted that Ms. Williams was terminated for poor attendance. Ms. Williams sued alleging that her termination violated the ADA. The Supreme Court concluded that Ms. Williams did not have a disability under the ADA. According to the Supreme Court, the term substantially limits was to be interpreted strictly and that, for a person to be substantially limited in performing a major life activity, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people s daily lives. 9 The Supreme Court concluded that Ms. Williams could still perform activities outside of the workplace, and therefore, she did not have a disability. After these decisions, the sponsors and supporters of the ADA argued that the two Supreme Court decisions described above, as well as other court decisions issued since the ADA s enactment, dramatically limited the ability of individuals with disabilities to seek justice under the law. They noted that courts routinely dismissed ADA cases while relying on an employer s argument that the individual was not a qualified individual with a disability, as defined by the ADA, because the individual s physical or mental impairments were not sufficiently severe. Moreover, often, courts dismissed claims of disability discrimination because the individual alleging discrimination had a condition that was not disabling because it was mitigated by treatment or an assistive device. Americans with Disabilities Act Amendments Act of 2008 On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act. The ADA Amendments Act became effective on January 1, According to Congress, the ADA Amendments Act reinstated a broad scope of protection under the ADA for individuals who, because of how the courts had interpreted the ADA, would not have been protected. As part of reinstating this broad scope of protection, Congress rejected the decisions in Sutton and Toyota Motor. Specifically, Congress acted to: Reject the standard in Toyota Motor that the terms substantially and major in the definition of disability under the ADA need to be interpreted strictly to create a demanding standard for qualifying as disabled; Reject the standard in Toyota Motor that to be substantially limited in performing a major life activity under the ADA an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives; Reject the requirement in Sutton that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures; and Reject the reasoning in Sutton with regard to coverage under the third prong of the definition of disability and reinstate a broad view consistent with the definition of handicap under the Rehabilitation Act of

4 Congress noted that whether an individual's impairment is a disability under the ADA should not demand extensive analysis. Instead, the primary object in ADA cases should be whether entities covered under the ADA have complied with their obligations. Consistent with the above purposes, the ADA Amendments Act made significant changes to the ADA to ensure broad protection. In particular, although the ADA Amendments Act retained the original definition of disability found in the ADA, the ADA Amendments Act included nine rules of construction for the term to ensure broad construction. The nine rules are: 1. The term substantially limits is to be construed broadly and is not meant to be a demanding standard. 2. The impairment needs to prevent or severely restrict a major life activity; however, not every impairment is a disability. The comparison is to most people. 3. The primary object of disability discrimination cases is whether discrimination occurred. Whether an impairment substantially limits a major life activity should no longer demand an extensive analysis. 4. An individualized assessment remains for the coverage analysis, but a lower degree of functional limitation applies. 5. Scientific, medical or statistical analysis is not required, but may be used where appropriate. 6. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. 7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 8. An impairment has to substantially limit only one major life activity; it is not necessary for the impairment to limit more than one major life activity. 9. An impairment that is temporary, e.g., lasting fewer than six months, can be substantially limiting. 10 The ADA Amendments Act also called for increased recognition of major life activities and provided a non-exhaustive list of activities that would constitute major life activities. The list is comprised of: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The ADA Amendments Act also clearly stated that the term major life activity also includes the operation of a major bodily function, which is defined to include, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 4

5 The ADA Amendments Act also made it less difficult for individuals to establish coverage under the regarded as prong of the ADA. Specifically, under the ADA Amendments Act, an individual is regarded as having an impairment protected by the ADA merely by showing that he or she suffered an action the ADA prohibits, e.g., hiring, firing, failure to promote, due to an actual or perceived impairment. 11 There is no requirement that an individual make a showing with regard to the severity of the impairment. 12 It is also not necessary for the individual to be able to prove that the employer perceived that the individual suffered from a condition that meets the definition of disability under the ADA. With this expansion of the law, Congress cited the U.S. Supreme Court s decision in School Board of Nassau County v. Arline, and relied upon the Court s statement: [A]lthough an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. 13 However, the ADA Amendments Act explicitly stopped short of expanding all the protections of the ADA to individuals who do not actually suffer from a disability, as that term is defined by the ADA. In particular, individuals who only qualify for ADA protection under the regarded as having an impairment test are not entitled to a reasonable accommodation. 14 Reasonable accommodations in the workplace are reserved only for those individuals who actually have a medical impairment. EEOC Regulations to Implement the ADA Amendments Act of 2008 The ADA Amendments Act issued several directives to the EEOC to adopt new regulations and revise current regulations related to the ADA. On September 23, 2009, the EEOC issued a Notice of Proposed Rulemaking and solicited public comment on the proposed regulations. Then, on March 25, 2011, the EEOC published the final regulations in the Federal Register. 15 According to the EEOC, the regulations are intended to implement the ADA Amendments Act, and in particular, Congress mandate that the definition of disability be construed broadly. Moreover, the EEOC endeavored to set forth predictable, consistent, and workable standards for purposes of the various terms of art used within the ADA. Defining Major Life Activities: The regulations, like the ADA Amendments Act, include two non-exhaustive lists of activities which, if substantially limited, will qualify as disabling conditions. The first list, major life activities, encompasses all of the activities listed in the ADA Amendments Act, as well as three others (sitting, reaching, and interacting with others). 16 The second list, which details qualifying major bodily functions, similarly includes every function specifically mentioned in the ADA Amendments Act, as well as several others (e.g., skin, musculoskeletal, and lymphatic). 17 In regard to other impairments which may qualify but are not specifically listed, the regulations instruct that the term major life activities should not be strictly interpreted. By applying the nine rules of construction for the definition of disability to the understanding of major life activities set forth in the regulations, the classification of a disability is intended to be more predictable. In some cases, the result is so predictable that the regulations contain a list of impairments which in virtually all cases, result in a determination of coverage. 18 The list includes the following impairments: deafness, blindness, intellectual disability, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV) infection, multiple sclerosis (MS), muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic distress disorder, obsessive compulsive disorder, and schizophrenia. 5

6 For impairments that do not fall into the predictable category, the regulations advise that the condition and manner in which the individual performs the major life activity, as well as the duration of time it takes, may be considered in establishing whether there is a substantial limitation. Relevant facts taken into account include the difficulty, effort, and time required by an individual to perform the activity; pain the individual experiences; the length of time the activity can be performed; and the negative effects of mitigating measures. The regulations explain that being substantially limited in performing one specific job does not make a person substantially limited in the major life activity of working. However, if an individual is substantially limited in performing a class of jobs, that person likely constitutes an individual with a disability for purposes of the ADA. Applying the Regarded As Prong: The regulations also clarify the expansion of ADA protection under this third prong. Specifically, the regulations explain that if an employer takes an action that is prohibited by the ADA on the basis of the individual s physical or mental impairment and that impairment is not transitory and minor, the individual is protected under the ADA. It is important to note that impairments that are both transitory, i.e., lasting six months or less, and minor, are not protected under the ADA. 19 Thus, under this prong, it is not necessary for a plaintiff to show that the impairment substantially limits a major life activity or a record of such an impairment. The test is objective in that an employer may be able to refute a charge of discrimination under the regarded as prong of the ADA by demonstrating that the perceived impairment, if the individual actually suffered from the impairment, is objectively transitory and minor. The employer s subjective beliefs about the particular impairment are not relevant to this determination. However, even if an individual proves that he or she was regarded as having an impairment, in order to pursue a successful claim of disability discrimination, the regulations explain that the individual must still be able to prove that the employer took an adverse employment action against him or her because of the perceived impairment. 20 Finally, the regulations incorporate the clarification provided by the ADA Amendments Act that employers are not required to provide reasonable accommodations to individuals who are regarded as disabled, if the individuals do not claim to have an actual disability or a record of disability. Moreover, there is no duty to engage in the flexible interactive process with respect to these individuals. Case Law Since The Passage of the ADA Amendments Act of 2008 As explained above, the ADA Amendments Act became effective on January 1, As a result, there are not yet a significant number of court decisions interpreting the ADA, as amended. Below are a handful of cases, where the courts had the opportunity to apply the amended version of the ADA. Lowe v. American Eurocopter, LLC 21 involved the termination of a receptionist who claimed to have suffered from obesity. In light of the ADA Amendments Act, the United States Court for the Northern District of Mississippi denied the employer s motion to dismiss based, in part, on the argument that obesity does not constitute a disability under the ADA and remanded the case for a trial on that issue. 6

7 Norton v. Assisted Living Concepts, Inc. 22 examined the termination of an individual working as a Residence Sales Manager when he took medical leave to seek treatment for a cancerous tumor in his kidney. The United States District Court for the Eastern District of Texas applied the ADA Amendments Act and concluded that the employee s cancer satisfied the definition of disability under the ADA. The court relied upon a recent decision out of the Northern District of Indiana in which the court held that renal cancer is a disability because, despite its episodic nature, when it is active, it substantially limits the major life activity of cell growth. Feldman v. Law Enforcement Associates Corporation 23 reviewed the termination of an employee with multiple sclerosis (MS) and another employee with mini-strokes, both of whom were terminated from positions with a security and surveillance equipment manufacturer. The United States District Court for the Eastern District of North Carolina held that, under the amended version of the ADA, both employees were disabled. The court referenced the EEOC s regulations (which were only proposed at the time) and noted that MS was included in the list of impairments that will consistently result in a determination that the person is substantially limited in a major life activity. As for the employee who suffered mini-strokes, the court contrasted his condition with the section in the EEOC s proposed regulations which explained that: Temporary, non-chronic impairments of short duration with little or no residual effects (such as the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely) will usually not substantially limit a major life activity. Thus, the court held that both employees were disabled for purposes of the amended ADA. With that issue settled, the court remanded the cases for a determination as to whether the employees were the victims of disability discrimination. Horgan v. Simmons 24 involved an employee, who worked as a Sales Manager for a linen and uniform rental services company, was HIV positive, and had failed to disclose this fact to his employer. The employer terminated his employment alleging work performance issues shortly after learning of his HIV status. The United States District Court for the Northern District of Illinois relied upon the ADA Amendments Act and the EEOC s proposed regulations when it concluded that the employee was an individual with a disability under the ADA. As such, the court rejected the employer s motion to dismiss. Despite the expansion of the number of individuals protected by the ADA, as reflected in the case described above, courts are still requiring the employee to present evidence to demonstrate that he or she suffers from an impairment that constitutes a disability. In cases where the individual fails to do so, courts are dismissing the claims. 25 Gil v. Vortex, LLC 26 concerned the termination of an employee who had monocular vision from his position in a sheet metal fabrication company. The employee was injured in an accident that the company believed was the result of his disability. Despite having a doctor s note attesting to his ability to work safely, the company terminated his employment. The U.S. 7

8 District Court for the District of Massachusetts applied the amended version of the ADA to this case and concluded that the employee suffered from a disability under the first and third prongs of the ADA. In the context of the determination that the employee was regarded as having a disability, the court cited Congress statement about the purpose of the revisions to this section of the ADA, which explained that the regarded as prong was meant to express our understanding that unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments and our corresponding desire to prohibit discrimination founded on such perceptions Chamberlain v. Valley Health System, Inc. 27 arose out of a series of events that culminated in the termination of the employee, who served as a pharmacy technician at a medical center, after she made her employer aware of her diagnosis with a visual defect [in her right eye] which made fine visual tasks more difficult. The United States District Court for the Western District of Virginia held that the employee was regarded as having a physical impairment as a result of her vision problem and that the employer took an adverse employment action against her because of that perceived impairment. Conclusion Because of the ADA Amendments Act and the associated regulations recently promulgated by the EEOC, it is now easier for an individual to pursue a disability discrimination claim against an employer. For many years, the courts narrowed the definition of disability to apply to a small group of individuals whose physical or mental health impairments significantly restricted their ability to perform major life activities. Now, the group of individuals protected by the ADA is expanded. Therefore, while it is important to determine whether an employee or applicant has a disability, as that term is now defined by the ADA, the primary focus will now be on whether a reasonable accommodation exists that would allow the employee to perform the essential functions of his or her position. The EEOC has announced that it will be reviewing and evaluating its enforcement guidance publications addressing the rights and obligations under the ADA and, in particular, its Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 28 which was originally issued in October The EEOC expects to publish additional resources on the ADA without delay. Finally, it is important to remember that in the State of Wisconsin, employers must also comply with the disability protections found in the Wisconsin Fair Employment Act (WFEA). The WFEA uses a different definition of disability that is not affected by the changes to the ADA by the ADA Amendments Act and the EEOC s regulations. 29 * This Legal Notes was written by Michael J. Julka, Shana R. Lewis, and Richard F. Verstegen of Lathrop & Clark LLP, WASB Legal Counsel. It is designed to provide authoritative general information, with commentary, as a service to WASB s membership. It should not be relied upon as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel. 8

9 1 Pub. L , 104 Stat. 327 (1990). ENDNOTES U.S. 471 (1999) U.S. 184 (2002). 4 Pub. L (a)(4), 122 Stat (2008). 5 For prior discussions of this topic, see WASB Legal Notes, Employees with Mental Disabilities and the ADA (Spring 2004); Disability-Related Inquiries and Medical Examination under the ADA (Fall 2000); Mental Impairments and the ADA (Winter 1997); Accommodating Disabilities (March 1996); and An Overview of the Americans with Disabilities Act (November 1992). 6 Pub. L , 104 Stat. 327 (1990), Findings and Purpose U.S.C (2)(A-C) C.F.R (j)(2) (2009). 9 Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) C.F.R (j)(1) U.S.C (3)(A). 12 Representatives Hoyer and Sensenbrenner. Origins of the ADA Restoration Act. Congressional Record 154:148 (Sept. 17, 2008), p. H U.S. 273 (1987) U.S.C (h). 15 U.S. Equal Employment Opportunity Commission. Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of Available online at C.F.R (i)(1)(i). 17 Id. at (i)(1)(ii). 18 Id. at (j)(3)(ii)-(iii). 19 Id. at (f). 20 Id. at (l)(3). 21 1:10-CV-24-A-D (N.D. Miss. 2010). 22 4:10-CV (E.D. Tex. 2011). 23 5:10-CV-08-BR (E.D. N.C. 2011) F.Supp.2d 814 (N.D. Ill. 2010). 25 See, Gray v. Walmart Stores, Inc., 7:10-CV-171-BR (E.D. N.C. 2011); Broderick v. The Research Foundation of State University of New York, 10-CV-3612 (JS) (ETB) (E.D. N.Y. 2010); Powers v. USF Holland, Inc., 3:07-CV-246 JVB (N.D. Ind. 2010); George v. TJX Companies, Inc., 08-CV-275 (ARR)(LB) (E.D. N.Y. 2009); Wurzel v. Whirlpool Corporation, 3:09-CV-498 (N.D. Ohio 2010) F.Supp.2d 234 (Mass. 2010). 27 5:10-CV (W.D. Va. 2011). 28 Available online at 29 For more information on this subject, see Wisconsin School News: Employee Disability Discrimination (February 2002). 9

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