Professor Ruth Colker Moritz College of Law - PowerPoint Presentation

Slide1

Professor Ruth ColkerMoritz College of LawThe Ohio State University

2008 ADA AmendmentsSlide2

Basic ADA RequirementsThe term “disability” means, with respect to an individual –

a physical or mental impairment that substantially limits one or more major life activities of such individual;

a record of such an impairment; or

being regarded as having such an impairment.Slide3

Background to AmendmentsSutton Twins

“The determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment, including, in this instance, eyeglasses and contact lenses.”Slide4

More BackgroundToyota v

. Williams

The statutory requirements for defining disability “need to be interpreted strictly to create a demanding standard for qualifying as disabled.”Slide5

Some results under pre-2008 case lawThe following kinds of disabilities were sometimes found not covered by the ADA:

Deafness

Epilepsy

Cancer

Learning Disabilities

Missing LimbsVisual impairments

Cognitive impairments

Psychological impairmentsSlide6

Congress’ ResponseSenate passed S. 3406 by voice vote on September 11, 2008.

House cleared S. 3406 by unanimous consent.

President George W. Bush signed the ADA Amendments into law on September 25, 2008.

The effective date is January 1, 2009.Slide7

Congress’ Intent“The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”

“It is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”Slide8

Major Life ActivitiesMajor life activities include, but are 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

.

Everything in “red” type face was not previously contained in EEOC regulations.Slide9

Proposed EEOC RegulationsCaring 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;

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Major Bodily FunctionsFor purposes of previous paragraph, “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

Previous regulations contained no reference to the concept of a major bodily function.Slide11

Proposed EEOC RegulationsThe operation of major bodily functions, including functions of the immune system,

special sense organs, and skin

; normal cell growth; and digestive,

genitourinary

, bowel, bladder, neurological, brain, respiratory, circulatory,

cardiovascular

, endocrine,

hemic

, lymphatic, musculoskeletal

, and reproductive functions.Slide12

Importance of ChangeCancerEpilepsy

Bad backs

ADHD

HIVSlide13

Substantially LimitsThe determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as:

Medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics, hearing aids or devices, mobility devices, or oxygen therapy equipment and supplies

Use of assistive technology

Reasonable accommodations or auxiliary aids or services; or

Learned behavioral or adaptive neurological modificationsSlide14

Importance of ChangeHearing aids or cochlear implantsHigh functioning people with learning disabilities

Monocular vision (

Hallie

Kirkingburg

)Slide15

Proposed EEOC RegulationsAdd a fifth category:Surgical interventions, except for those that permanently eliminate an impairment

.Slide16

Eyeglass Exception“The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.”

BUT

“A covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.”Slide17

Where does this leave the Sutton twins?Slide18

Regarded as Having Such an Impairment“An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

But “regarded as” prong does not apply to “impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”Slide19

What does that mean?

Impairment prong is all that matters in a “regarded as” case.

Reverses cases that focused on “major life activity of working” as part of that standard.

Many more cases will be brought under “regarded as” prong.Slide20

Listed Disabilities under EEOC Proposed Regulations

In addition to examples such as deafness, blindness, intellectual disability (formerly termed mental retardation), partially or

completely missing

limbs, and mobility impairments requiring the use of a wheelchair,

Autism

Cancer

Cerebral palsy

Diabetes

Epilepsy

HIV

or

AIDS

Multiple

sclerosis and

musculardystrophy

Major

depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, or

schizophrenia.