The ADAAA The The ADAAA Final Regulations:
What You Need to Know
PRESENTED BY:
Mike Birrer
mbirrer@ccsb.com 214-855-3113
Angelina LaPenotiere
alapenot@ccsb.com 214-855-3095
6.20.11
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
people‟s lives.
SLIDE 2
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 entity‟s
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)
SLIDE 7
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.
1. Does Sandy have a potential disability claim?
(Fleck v. Wilmac, 2011 WL 1899198 (E.D.Pa)
2. Does Cathy have a potential disability claim?
SLIDE 8
Hypothetical
Wendy Waitress has burn scars covering one side of her
face. The scars are fully healed, and don‟t 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?
SLIDE 9
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)
SLIDE 11
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 8:30 am and 9:30 am. Patti Parent
who works in the cubicle next to Barry requests the same
flexible schedule in order to participate in her children‟s
carpool, but the employer says, No! She responds – That is
unlawful discrimination and promises a lawsuit.
1. Does she have a claim for disability discrimination?
2. What if she claimed gender discrimination using Barry as a
comparator?
3. 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)
SLIDE 14
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?
SLIDE 15
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)
SLIDE 17
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 it‟s 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
SLIDE 19
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?
SLIDE 20
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?
SLIDE 21
Rules of Construction For
“Substantially Limits” (cont‟d)
vii. Impairments that are episodic or in
remission are disabilities if they are
substantially limiting when active.
1630.2(j)
SLIDE 22
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?
SLIDE 23
Rules of Construction For
“Substantially Limits” (cont‟d)
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)
SLIDE 24
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)
SLIDE 25
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)
SLIDE 26
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
SLIDE 27
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
SLIDE 28
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 individual‟s 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
SLIDE 29
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?
SLIDE 30
Recent Cases
• Rumbin v. Assoc. of American Medical Colleges, 2011
WL 1085618 (D. Conn. March 21, 2011) (lack
of evidence comparing individual‟s 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
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