IMLA Presents

EMPLOYMENT LAW FOR THE MUNICIPAL LAWYER  

November 9-11, 2008Dallas, Texas

Amendments to ADA a Watershed??

Presented by:

Bettye LynnLynn Pham & Ross, LLP

©Lynn Pham & Ross, LLP 2008

AMENDMENTS TOADA

A WATERSHED??

BACKGROUND

ADAAA (ADA Amendments Act) of 2008 Near-unanimous support in Congress Approved by business and disabled communities Signed by President on September 25 Effective date January 1, 2009 MOST SIGNIFICANT CHANGES TO EMPLOYMENT

LAW SINCE FMLA ENACTED Overturned several Supreme Court decisions

that had limited ADA Erases several employer defenses to ADA claims

REASONS BEHIND AMENDMENTS

Study found plaintiffs lost 97% of all ADA claims Failure rate second only to prisoner’s cases Claims usually rejected for failing to meet strict

definition of “disability” Congress concerned courts had unduly

narrowed group of people it intended to protect in 1990

Purpose of ADAAA -- restore intent and protections of ADA

Extensive negotiations between business and disability advocates for joint proposal

ADAAA’S PURPOSE:RESTORE BROAD COVERAGE Clear intent—reinstate broad scope of

protection ADAAA strikes references to “43 million

disabled” and that persons with disability were a “discrete and insular minority”

Adds millions of Americans to those considered disabled

Also amends Rehabilitation Act to parallel ADAAA

TOYOTA MOTOR v. WILLIAMS “Substantial limitation” in major life activity Plaintiff must prove “prevented or severely

restricted in activity that is of central importance in most people’s daily lives”

ADAA reinterprets: focus should be whether employer has complied with its obligations under ADA

No more extensive analysis of whether person’s disability is an impairment

NEW LIST OF MAJOR LIFE ACTIVITIES Person who can’t perform one of these

is automatically considered disabled: Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing

MAJOR LIFE ACTIVITIES—Cont’d Lifting Bending Speaking Breathing Learning Reading Concentrating Thinking Communicating Working-most controversial

EXHAUSTIVE BUT NOT EXCLUSIVE

MAJOR BODILY FUNCTIONS

Normal cell growth Normal immune system Digestive Bowel Bladder Respiratory

Circulatory Endocrinal Reproductive Neurological Brain

NO REQUIREMENT THAT THESE HAVE ANY RELATION TO ABILITY TO WORK AND SOME ARE WHOLLY UNRELATED TO WORK

MAJOR BODILY FUNCTIONS (cont’d)

WILL COVER: Insomnia Dyslexia Stuttering Attention Deficit Disorder Infertility Treatments

RESULT OF THESE EXPANDED LISTS

GREATLY ENLARGES NUMBER OF INDIVIDUALS PROTECTED UNDER ADA

DISABILITY MITIGATIONDEFENSE IS ELIMINATED Most significant change:

Sutton trilogy is overruled Trilogy held employees not protected under ADA if able

to manage symptoms of disability by using medicine, prosthetics or other ways of reducing impairment—called “mitigating measures” Hearing aids Mobility devices Medical devices

ADAA prohibits that analysis and requires courts to evaluate disability without regard to mitigating measures

Only 2 exceptions: eyeglasses and contact lenses Vision tests must permit person to wear corrective

lenses, unless uncorrected vision is required by the job Result is significant expansion of persons protected by

ADA

EXAMPLES OF EXPANSION

Mitigating measures change will affect: Employees who have:

Epilepsy Diabetes Depression Bi-polar disorder Cancer High blood pressure Many other illnesses managed by medicine

EPISODIC IMPAIRMENTS AND THOSE IN REMISSION Amendments clarify that person with episodic

impairment or impairment in remission are judged by the substantial limitation in major life activity when condition is active

Example--cancer Reverses court decisions that conditions not

protected because not currently suffering symptoms

Examples: PTSD Epilepsy

“REGARDED AS” PRONG IS EXPANDED Old wording: employee had to show he was “regarded as” having impairment by employer

Courts said this meant employer perceived employee to be incapable of performing not only denied job, but also broad range of jobs—meant employee had to show “substantial limitation”

ADAA permits “regarded as” to be proved by adverse action because of actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity

“Regarded as” excludes transitory and minor impairments if they last 6 months or less.

THIS WILL LIKELY SIGINIFICANTLY EXPAND COVERAGE UNDER ADA

May make disability a continuous state without reference to the ailment

No accommodation to those only “regarded as” disabled No reverse disability discrimination claims will be recognized

DEFINITION ALSO CHANGED

Old definition: Discrimination against an individual with a disability because of the disability

New definition: Discrimination on the basis of disability

Focus likely to change from individual’s impairment to merits of alleged discriminatory conduct

CONGRESS’ DIRECTION TO EEOC Revise ADA Regulations defining

“substantially limits” as “unable to perform a major life activity. . .or significantly restricted as to . . . particular major life activity.”

EEOC Regulations not likely before effective date of Amendments

PRACTICAL STEPS FOREMPLOYERS TO TAKE NOW Review handbooks and policies to incorporate

provisions of ADAAA—especially those related to accommodation requests—both for new hires and for current employees

Make sure accurate job descriptions are in place for all employees

Expect more accomodation requests, so now is time to train HR and managers about the amendments—especially as to responses to such requests and the change in analysis on mitigating measures

Create protocols for dealing with accommodation requests

Inject flexibility into policies and practices

PRACTICAL STEPS (cont’d)

Be more wide ranging in interactive dialogues with employees and applicants and timely document all accommodation efforts and results—formalize this process

Document timely legitimate performance criticism—must be able to show legitimate non-discriminatory reason for action

Consider present adverse employment actions that may meet relaxed coverage standards of ADAAA

Start analysis concluding employee is disabled under ADAAA

Consider interaction of new ADAAA and FMLA

PRACTICAL IMPLICATIONSFOR THE EMPLOYER Burden of proof remains on employee New burden is not intended to be difficult to

meet Relaxed standards will focus more on

employers making reasonable accommodations than now occurs

Higher accommodation costs are likely with increase in number of protected employees

More difficult to defend against lawsuit by claiming employee not disabled under ADA

More challenging to employer to manage day-to-day workplace situations

Will lead to increased litigation

EMPLOYERS’ ACTIONS—Cont’d. Consult with counsel when deciding employee not entitled

to accommodation Focus of litigation will change to issues about essential

functions of job and to ability to perform them rather than whether employee meets definition of disabled

Retroactivity??—unknown –watch for arguments that ADAAA should apply to pending claims, not just new ones

Watch for issuance of EEOC regulations interpreting ADAAA Result: significant increase in litigation likely More costly and complex litigation likely—proof of whether

accommodation was available, undue hardship existed and what are the essential job functions

Also litigation will look at whether specific performance conduct standards are job-related and consistent with business necessity what risks satisfy “direct threat” standard? has reassignment been sufficiently explored?

Thank you!Bettye Lynn

Attorney at Law**************************

Lynn Pham & Ross, LLP306 West Broadway Avenue

Fort Worth, Texas 76104(817) 332-8504

(817) 332-8548 faxE-mail: Lynn@laborcounsel.net

THIS IS NOT LEGAL ADVICE, PLEASE CONTACT YOUR LABOR AND EMPLOYMENT ATTORNEY REGARDING YOUR SITUATION

©Lynn Pham & Ross, LLP 2008