amy bones creighton university general counsel ada amendments acts of 2008

AMY BONESCREIGHTON UNIVERSITY

GENERAL COUNSEL

ADA Amendments Acts of 2008

ADA Amendments Act of 2008

This bill better defines who Congress intends to meet the definition of disabled.

No reliance on mitigating measures.What is a major life activity?Lowers the threshold.Requires broad interpretation of the ADA.


ADAAA includes a conforming amendment to the Rehabilitation Act of 1973 that affects the meaning of the term disability in Section 504 of the Rehabilitation act

Prior law was being interpreted VERY narrowly

According to the ABA Commission on Mental and Physical Disability Law 2007 survey, employers won 95.5% of the cases brought under the ADA


Core rights:Non-discriminationReasonable accommodation


A “qualified” individual with a disability can:

(1)satisfy the skill, experience, education and other job-related requirements

(2)can perform the essential job functions with or without reasonable accommodations


Disability means:(a)a physical or mental impairment that

substantially limits one or more major life activities of such individual;

(b)a record of such an impairment; or (c)being regarded as having such an

impairment.


Definition” of disability is fundamentally the same.

The goal of broadening the definition of “disability” is accomplished by redefining how specific terms are to be interpreted.


Substantially limits one or more major life activities.

Past Supreme Court decisions said this meant to “prevent or severely restrict the ability of an individual to do activities of central importance to most people’s daily lives.”

EEOC was directed to revise its regulations defining "substantially limits" to be consistent with the act (broader definition; less restrictive).


The House report, which may or may not be used as guidance by a court, says:

In the range of severity of the limitation, ‘‘materially restricted’’ is meant to be less than a severe or significant limitation and more than a moderate limitation, as opposed to a minor limitation.


One commentator predicts: “Sometimes an agency will hesitate to provide regulations when uncertainty works in favor of a broad interpretation …., I do not expect regulations to be promulgated any time soon."


“Mitigating measures”

Sutton v. United Airlines

The U.S. Supreme Court found you do not ignore mitigating measures. This holding resulted in a lot of people not being covered by the ADA.


Mitigating measures: medication, medical supplies, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics, hearing aids and cochlear implants, mobility devices and oxygen therapy equipment, as well as assistive technology, reasonable accommodations or auxiliary aids or services, and learned behavioral or adaptive neurological modifications.


For example, a person with epilepsy who takes medication to control her seizures will most likely be covered because we will consider what her limitations would be without her medication. JAN ADA Amendments Act

People with conditions such as epilepsy, diabetes, and mental illness, who control their symptoms through measures like medication, good diet, and regular sleep may be found to be substantially limited.


Major Life activities: Original ADA did not define this termLeft to agencies that enforced the Act


EEOC used an illustrative list including functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.


Supreme Court defined the term “major life activities” narrowly – those activities are of central importance to most people’s daily lives.


Under the ADAAA, an impairment that substantially limits one major activity need not limit other major activities in order to be a disability.

“major” in major life activities should not be

interpreted strictly.


Non-exhaustive illustrative list of major life activities:

- caring for oneself - reading

- bending - sleeping

- performing manual tasks

- concentrating

- speaking - walking

- seeing - thinking

- breathing - standing

- hearing - lifting

- learning - communicating

- eating - working


A "major life activity" now include the operation of major bodily functions, i.e. the immune system, cell growth, the digestive system, bowel and bladder functions, the neurological system, the brain, the respiratory system, the circulatory system, endocrine functions and reproductive functions.


Episodic: An impairment that is episodic or in remission is a

disability if it would substantially limit a major life active when active.

Epilepsy Cancer in remissionWhen considering whether a person whose

condition is episodic or in remission is substantially limited in a major life activity, we consider the person’s limitations as they are when the condition is in an active state.


Under the Rehabilitation Act, the Supreme Court found: “Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from the actual impairment.”


Regarded as: 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 adverse action 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.


Theory: try to prevent employers from making decisions based upon fears and stereotypes.

Reasonable accommodations need not be provided to employees who are “regarded as” disabled.


Cannot discriminate against an employee on the basis of a perceived disability.

Does not apply to impairments that are transitory and minor, with an actual or expected duration of 6 months or less.


More individuals will qualify as having disabilities.

More cases in the future will turn on the question of whether the plaintiff’s requested accommodation was reasonable.

Post ADA Amendments Act, the question will

focus on whether employers have complied with the law (by providing reasonable accommodations).


What is a reasonable accommodation? Any change in the work environment OR Way things are customarily done Enables applicant/employee to enjoy equal employment

opportunity Nothing requires post-secondary educational

institutions to make modifications that would fundamentally alter the nature of services, facilities, privileges, advantages or accommodations involved.

(Rehabilitation Act protections are also involved here).


Not expected to eliminate academic requirements essential to instruction

May be required to make modifications to enable students with disabilities to meet those academic requirements

Modifications may include: changes in the length of time permitted for the completion of

degree requirements, substitution of specific courses required for the completion of

degree requirements, adaptation of the manner in which specific courses are

conducted


Documentation shift: from diagnostic evidence of disability to the need for requested accommodations.


Is there a process in place to determine if an accommodation is reasonable or whether it would be a fundamental alteration?


Before refusing an accommodation, because an institution believes it would lower academic standards or fundamentally alter a program of study, undertake a review process.


Officials with relevant duties and experience considered the accommodation request;

They meaningfully considered the impact on the program and the availability of alternatives;

They reached a rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or substantial alteration to the program of study.


Technical standards should be reviewed as well as make sure they are anchored to the curriculum and supported in policy and practice.

Utilize objective performance criteria that can be reliably applied to all program applicants or participants.

amy bones creighton university general counsel ada amendments acts of 2008

Documents

adaada amendments act

ada amendments actpeople

act broader definition

definition of disability

term disability

physical disability

major life activities

mitigating measuressutton