By Danny Wash
The following is a portion of a question and answer page published by the EEOC regarding the final regulations interpreting the ADA Amendments Act of 2008. If you would rather read the entire document you can find it on the EEOC website here:
The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. This law made a number of significant changes to the definition of “disability.” It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations will be published in the Federal Register on March 25, 2011. The ADAAA did not change the basic legal requirement that employers must not discriminate against individuals with disabilities who are qualified for a job, with or without reasonable accommodation. The questions and answers below provide information on what has changed because of the ADAAA, what in the law remains the same, and some tips for complying with the law as amended. For general information on how the ADA’s employment provisions apply to small businesses, you may consult “The ADA: A Primer for Small Business” at www.eeoc.gov/eeoc/publications/adahandbook.cfm.
1. What is the purpose of the ADAAA?
Among the purposes of the ADAAA is reinstatement of a “broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – had been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” Yet, Congress thought that individuals with these and other impairments should be covered. As a result of the ADAAA and EEOC’s regulations, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of “disability.”
2. Must all small businesses comply with the ADAAA and these regulations?
No. These regulations apply to all private employers with 15 or more employees. State or local laws, however, may apply to smaller employers. Additionally, the ADAAA’s changes to the definition of disability would apply to employers who are federal contractors or subcontractors subject to Section 503 of the Rehabilitation Act and to employers who receive federal financial assistance under Section 504 of the Rehabilitation Act, regardless of the number of employees they have. Finally, although these regulations do not apply to the employment practices of businesses with fewer than 15 employees, such businesses, if they are considered places of public accommodation, are required to comply with the ADAAA’s changes to the definition of disability under Title III of the ADA with respect to the goods and services they provide to the public.
3. Does the ADAAA apply to discriminatory acts that occurred prior to January 1, 2009?
No. The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009.
4. How do the ADAAA and the EEOC regulations define “disability?”
The ADAAA and the regulations define “disability” as:
We will address each of these definitions (sometimes called the three “prongs” of the definition) of disability.
PRONG 1: AN “ACTUAL DISABILITY”
5. How do the regulations define the term “physical or mental impairment”?
Basically, an impairment is a physical or mental disorder, illness, or condition. Like EEOC’s original ADA regulations and interpretive guidance (sometimes called the Appendix to the regulations), the revised regulations and appendix distinguish between impairments and ordinary personality traits, such as irritability, poor judgment, or chronic lateness, that are unrelated to a physical or mental impairment.
The revised regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. This is basically the same definition that was included in the original ADA regulations.
6. What are “major life activities?”
The regulations provide a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
The regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The regulations also state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).
As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.
7. How much does an impairment have to limit someone to be considered a disability?
An individual must be substantially limited in performing a major life activity as compared to most people in the general population. However, Congress lowered the threshold for establishing a substantial limitation from the standards established by courts and in the original ADA regulations. An impairment no longer has to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”
Congress directed that the term “substantially limits” be construed broadly in favor of expansive coverage, although not all impairments will constitute a disability. Furthermore, under the ADAAA and the EEOC’s regulations, the question of whether an impairment is a disability should not demand an extensive analysis.
8. Do the regulations require that an impairment last a particular length of time to be considered substantially limiting?
No. Even a short-term impairment may be a disability if it is substantially limiting.
9. What kinds of facts might be relevant in determining whether an impairment substantially limits a major life activity?
The regulations state that the condition, manner, or duration (where duration refers to the length of time it takes to perform a major life activity or the amount of time the activity can be performed) under which a major life activity can be performed may be considered if relevant in certain cases in determining whether the impairment is a disability. But, with respect to many impairments, including those that should easily be concluded to be disabilities (see Question 16), it may be unnecessary to use these concepts to determine whether the impairment substantially limits a major life activity. Assessment of the condition, manner, or duration may include consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function.
10. Can an impairment that does not affect someone all the time be considered a disability?
Yes. The ADAAA and the regulations specifically state that an impairment that is “episodic or in remission” ( i.e., the impairment’s limitations are not present all the time) meets the definition of disability if it would substantially limit a major life activity when active. This means that even if the effects of an impairment occur briefly or infrequently, the impairment could still be a disability.
Examples of impairments that may be episodic include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability under the ADAAA and the regulations.
11. If someone takes medication or uses some kind of a device, like a hearing aid, to lessen the effects of an impairment, may that be considered in determining whether the person has a disability?
No, except for ordinary eyeglasses or contact lenses (see Question 12). The ADAAA and the regulations require that the positive effects from an individual’s use of one or more “mitigating measures” be ignored in determining if an impairment substantially limits a major life activity. Instead, the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. This may mean focusing on the extent of limitations prior to use of a mitigating measure or on what would happen if the individual ceased using it.
The ADAAA and the regulations provide a non-exhaustive list of examples of mitigating measures. They include medication, medical equipment and devices, prosthetic limbs, low vision devices ( e.g., devices that magnify a visual image), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.
12. Does the rule concerning mitigating measures apply to people whose vision is corrected with ordinary eyeglasses or contact lenses?
No. “Ordinary eyeglasses or contact lenses” – defined in the ADAAA and the regulations as lenses that are “intended to fully correct visual acuity or to eliminate refractive error” – must be considered when determining whether someone has a disability. For example, a person who wears ordinary eyeglasses to correct a routine vision impairment is not, for that reason, a person with a disability under the ADA. However, the ADAAA and the regulations do allow even individuals with fully corrected vision to challenge uncorrected vision standards that exclude them from jobs. An employer must be able to show that the challenged standard is job-related and consistent with business necessity.
13. May the positive or negative effects of mitigating measures be considered when assessing whether someone is entitled to “reasonable accommodation” or poses a “direct threat?”
Yes. The ADAAA’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” Other determinations – including the need for a reasonable accommodation and whether an individual poses a direct threat (a significant risk of substantial harm to self or others) – can take into account both the positive and negative effects of a mitigating measure. The negative effects of mitigating measures may include side effects or burdens that using a mitigating measure might impose. For example, someone with diabetes may need breaks to take insulin and monitor blood sugar levels, and someone with kidney disease may need a modified work schedule to receive dialysis treatments. On the other hand, if an individual with a disability uses a mitigating measure that results in no negative effects and eliminates the need for a reasonable accommodation, an employer will have no obligation to provide one. For example, an employee with epilepsy may no longer need permission for unscheduled breaks as a reasonable accommodation after switching to a different medication that completely controls seizures.
14. May an employer require that an individual use a mitigating measure?
No. An employer cannot require an individual to use a mitigating measure. However, failure to use a mitigating measure may affect whether an individual is qualified for a particular job or poses a direct threat.
15. Do the ADAAA and EEOC’s regulations still require that an individualized assessment be done to determine whether an impairment is a disability?
Yes. However, certain impairments, due to their inherent nature and the extensive changes Congress made to the definitions of “major life activities” and “substantially limits,” will virtually always be disabilities. For these impairments, the individualized assessment should be particularly simple and straightforward.
16. Do the regulations give any examples of specific impairments that will easily be concluded to substantially limit a major life activity?
Yes. The regulations identify specific types of impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
PRONG 2: A RECORD OF A DISABILITY
18. When does an individual have a “record of” a disability?
An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment ( e.g., someone erroneously deemed to have had a learning disability but who did not).
All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability.
PRONG 3: REGARDING AN INDIVIDUAL AS HAVING A DISABILITY
19. What does it mean for an employer to “regard” an individual as having a disability?
Under the ADAAA and the regulations, an employer “regards” an individual as having a disability if it takes an action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is both transitory (lasting or expected to last for six months or less) and minor. This new formulation of “regarded as” having a disability is different from, and is easier to meet, than the previous standard.
The regulations state that an employer may challenge a claim under the “regarded as” prong by showing that the impairment in question, whether actual or perceived, is both transitory and minor. In other words, whether the impairment in question is transitory and minor is a defense available to employers. However, an employer may not defeat a claim by asserting it believed an impairment was transitory and minor when objectively this is not the case. For example, an employer who fires an employee because he has bipolar disorder cannot assert that it believed the impairment was transitory and minor because bipolar disorder is not objectively transitory and minor.
20. If an employer regards an individual as having a disability, does that automatically mean the employer has discriminated against the individual?
No. The fact that an employer’s action may have been based on an impairment does not necessarily mean that the employer engaged in unlawful discrimination. For example, an individual still needs to be qualified for the job he or she holds or desires. Additionally, in some instances, an employer may have a defense to an action taken on the basis of an impairment, such as where a particular individual would pose a direct threat or where the employer’s action was required by another federal law ( e.g., a law that prohibits individuals with certain impairments from holding certain kinds of jobs). As under current law, an employer will be held liable only when the employee proves that the employer engaged in unlawful discrimination under the ADA.
OTHER ISSUES ADDRESSED BY THE ADAAA
21. Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation?
Yes. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation. Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. An individual must be able to show that the actual disability, or past disability, requires a reasonable accommodation.
22. May a non-disabled individual bring an ADA claim of discrimination for being denied an employment opportunity or a reasonable accommodation because of lack of a disability?
No. The ADA does not protect an individual who is denied an employment opportunity or a reasonable accommodation because she does not have a disability
March 24th, 2011 Comments Off
By Danny Wash
The EEOC has always held the opinion that the “no-fault” attendance policies that many employers have in order to get rid of their sick or injured employees after a set length of time (some have 6 month or 12 month policies) can violate the ADA. However, the problem with enforcing that as a violation was that before the Americans with Disabilities Amendments Act (ADAAA) which went into effect 1/1/09, the federal courts shot down almost every case by ruling that the person was not disabled in order to qualify for protection. Under the ADAAA, the federal courts were instructed by Congress to lower the bar and not make it so difficult for a person to be classified as disabled under the ADA. So, now many individuals with disabilities are protected and many of the ”no-fault” attendance policies violate the ADAAA because the company does not consider extensions of leave, as a reasonable accommodation, as they should. The EEOC states that an employer must consider holding a job open for a reasonable time for a person with a disability (say a person off with cancer) if the company can hold it open without it being an “undue hardship”. And, it is the company’s duty to prove that it would be an undue hardship. If the company cannot hold it open, then they must consider another equal or lower job which is open. If there is no open job, then they can fire the employee.
March 21st, 2011 Comments Off
By Danny Wash
The revised Americans with Disabilities Act regulations relating to public accommodations which became effective March 15, 2011 can be found here. A summary of these regulations is also located at this site. These important regulations provide information on the use of wheelchairs, miniature horses (can now be used as an alternative to guide dogs), communications, ticketing, and a safe harbor rule.
March 17th, 2011 Comments Off
By Danny Wash
For a look at a great chart showing the demographics of who (what types) of people have been filing bankruptcy click on the link. The chart gives statistics on age, employment, education, income, etc.
March 16th, 2011 Comments Off
By Danny Wash
The Surface Transportation Assistance Act (STAA) is a little known federal law that protects truck drivers (drivers of a commercial motor vehicle, including an independent contractor when personally operating a commercial motor vehicle, a mechanic, a freight handler, or an individual not an employer) from retaliation by their employer for refusing to operate a dangerous vehicle, obeying the law, reporting dangerous conditions, and accurately reporting their driving hours . STAA provides that: A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because (A) (i) the employee, or another person at the employee’s request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding; or (ii) the person perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order;
March 15th, 2011 Comments Off
By Danny Wash
The Department of Labor has a webpage that contains a comprehensive list of federal whistleblower laws. If you think you have been discriminated against or fired for complaining to your employer about something, you might want to take a look at this list and see if any of the laws could be applicable to your situation. If so, you probably should contact an attorney immediately because many of these laws have short times for reporting or filing complaints about the discrimination. Click on the highlighted link above to go to the list.
March 10th, 2011 Comments Off
By Danny Wash
The U.S. Supreme Court finally answered the long awaited question of whether the “Cat’s Paw” theory was a valid method of placing liability on a company for the discriminatory actions of a supervisor that results in an adverse action against an employee by a higher supervisor who had no personal discriminatory animus. And, the answer was a resounding “Yes”. On March 1, 2011, the Court handed down the opinion in Staub v Proctor Hospital. The Court held that if a supervisor’s discriminatory act is motivated by illegal discrimination (in this case it involved the Uniformed Services Employment and Reemployment Rights Act of 1994) to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable. In this case, the two supervisors of the employee were hostile to the military and plaintiff’s involvment in the military reserves. The plaintiff was fired by a supervisor above the two hostile supervisors. The company claimed that the terminating supervisor was not hostile toward the military and did not know that the write ups he considered for the termination were motivated by the lower supervisors’ hostility. The Court upheld the “Cat’s Paw” theory that if the terminating supervisor utilizes the discriminatorily motivated input from the lower supervisors, the company is liable for the ultimate harm. This will be so, even if the terminating supervisor does an independent investigation, as long as the discriminatory information is used as part of his decision. The Court’s holding stated: “we therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under the USERRA.” Based on this decision, it is virtually certain that the Cat’s Paw theory will be applicable beyond just USERRA suits, in Title VII actions, because it has been utilized extensively by other lower courts in these other employment discrimination suits.
March 1st, 2011 Comments Off