THE ADA

WHERE ARE WE NOW?

Tom Robertson
BARROW & GRIMM, P.C.
110 W. 7th Street, Suite 900
Tulsa, Oklahoma 74119
(918) 584-1600
robertson@barrowgrimm.com
I’m Lost – Where Are We?
 With great fanfare, the Americans With
Disabilities Act (ADA) was amended in 2008
 The Courts had arguably limited the

application of the ADA and had limited it

beyond what the Congress and American
people thought the law should be
 The effect of the ADAAA (ADA Amendments

Act of 2008) – negligible so far

EEOC’s Regulations
 EEOC issued Proposed Regulations on
September 23, 2009, implementing the
ADAAA changes.
 Regulations were open for comment for 60

days.
 EEOC will consider all comments and issue

final regulations.
WHO IS IMPAIRED?
 PROBLEM 1 – Who may be covered under the
ADA, due to the ADAAA?
 The term ‘substantially limits’ means

materially restricts.
 “Reaching” is a major life activity.
 Possible Attention Deficit Disorder;

concentrating as a major life activity

 Asperser's Syndrome?
WHO IS IMPAIRED?
Congress added some
specific major life EEOC added some
activities to the list: additional major life
caring for oneself; activities to the list:
performing manual sitting; reaching; and
tasks; seeing; hearing; interacting with
eating; sleeping; others. The
walking; standing; regulations state that
lifting; bending; the specific lists are
speaking; breathing; not exhaustive; no
learning, reading;
negative implication
thinking; working
from omission
WHO IS IMPAIRED?
 In determining who has a covered
impairment, the individual should be
compared to members of the public.
 “An impairment is a disability if it

substantially limits the ability of an individual

to perform a major life activity as compared
to most people in the general population.”
EEOC’s Interpretative Guidance.
MAJOR BODILY FUNCTIONS
 In a new approach, Congress and the EEOC
provide that major bodily functions are major
life activities. Can be an impairment if
materially restricted
 Immune system; sense organs; skin; brain;

cardiovascular; normal cell growth;

respiratory; circulatory; endocrine; lymphatic;
musculoskeletal; reproductive functions; HIV
and AIDS.
 CHANGED CONCEPT OF
IMPAIRMENT
 Under the ADA, courts performed individual
assessment of whether impairment existed.
 EEOC’s new regulations shift from individual

assessment to a per se treatment of a

number of conditions and major life
activities. There can be no doubt that the
category of impairment is tremendously
broadened.
 CBO estimate 10% increase in disability

discrimination complaints over 5 years.

CATEGORIES OF IMPAIRMENT
 EEOC says that it is dividing impairments into
two categories:
▪ Impairments that consistently meet the
definition of disability; and
▪ Impairments that will be disabilities for
some, but not for others.
The EEOC’s regulatory approach suggests
that it will be the rare case when a
recognizable impairment is not a disability
IMPAIRMENTS AS
DISABILITIES
 “An individual with a disability is someone
who due to an impairment is substantially
limited in performing a major life activity as
copared to most people in the general
population. An impairment need not prevent,
or significantly or severely restrict, the
individual from performing a major life
activity to be considered a disability.” EEOC’s
Interpretative Guidance.
SUBSTANTIALLY LIMITS
 PROBLEM 2
 Is Ilene an individual with an impairment

which substantially limits a major life activity?

 Has your supervisor violated the ADA? The

broken arm appears to be a transitory

condition which has not impaired the
employee, regardless of the Uncle’s
experience.
SUBSTANTIALLY LIMITS
 An impairment is a disability if it substantially
limits the ability of an individual to perform a
major life activity as compared to most
people in the general population. An
impairment need not prevent, or significantly
or severely restrict, the individual from
performing a major life activity in order to be
considered a disability. 29 C.F.R. Sec. 1630.2
(proposed).
SUBSTANTIALLY LIMITS
 An individual whose impairment substantially
limits a major life activity need not also
demonstrate a limitation in the ability to
perform activities of central importance to
daily life in order to be considered an
individual with a disability.
 Ilene’s diabetes need not substantially limit

another major life activity. The impairment of

the endocrine system functioning is
sufficient.
SUBSTANTIALLY LIMITS
EEOC EXAMPLES
 One with 20 lb lifting restriction need not
demonstrate he is unable to perform daily
activities which require lifting
 An individual whose normal cell growth is

substantially limited due to cancer need not

also show that he is substantially limited in
working or any other major life activity.
REGARDED AS IMPAIRED
 Normally, a condition which is transitory and
minor is not a covered impairment.
 The broken arm, by itself, would not qualify

the individual to be “regarded as having an

impairment” due to its nature.
 However, the supervisor believed that the

condition was not transitory, but would have

implications later, and may have moved the
employee into the category of regarded as
impaired.
MITIGATING MEASURES
 “The ameliorative effects of mitigating
measures shall not be considered in
determining whether an impairment
substantially limits a major life activity, with
the exception of ordinary eyeglasses or
contact lenses.” EEOC’s Interpretative
Guidance.
 An individual whose medication or treatment

eliminates all effects can still be disabled.

MITIGATING MEASURES
“The regulations also make clear that even
an individual who, because of the use of
medication or another mitigating measure,
has experienced no limitation, or only minor
limitations, related to the impairment may
still be an individual with a disability, where
there is evidence that in the absence of an
effective mitigating measure the individual’s
impairment would be substantially limiting.”
▪ Is this good public policy?
IMPAIRMENT AND
REASONABLE ACCOMMODATION
 PROBLEM 3
 Is there an ADA problem? The employee says

he has heartburn, a “transitory and minor”

condition the EEOC regs would exclude.
 Do you have to transfer the employee to

another job, which is now full, to

accommodate his condition?
IMPAIRMENT AND
REASONABLE ACCOMMODATION
 Your medical diagnosis may move the
employee into the “regarded as” category of
impairment.
 Heartburn is not an ADA-covered condition.
 However, a cardiovascular condition, which

you have diagnosed, is an ADA-covered

condition.
 Even if you are wrong in your diagnosis, the

employee is likely covered by the ADA.

IMPAIRMENT AND
REASONABLE ACCOMMODATION
 Assume employee is not fired, what is the
scope of your reasonable accommodation
duty?
 The ADAAA did not change the definition or

interpretation of the duty of reasonable

accommodation.
 ADAAA does say no R.A. needed for an

individual who meets definition of disability

solely under the “regarded as” prong.
 PREPARING FOR THE
ADAAA
What do H.R. Professionals Need to do Now to
be Prepared for the New and Improved ADA?
CHANGE YOUR THINKING
 Before the ADAAA and the EEOC’s new
regulations, many cases could be won on the
issue of whether the employee was a
“qualified individual with a disability.”
 The EEOC tells us that “The focus of an ADA

case should be on whether discrimination

occurred, not on whether an individual meets
the definition of disability.”
CHANGE THE BATTLEFIELD
 Employers will need to shift the focus of an
ADA fight, from coverage to motive, or
accommodation.
 We must be sure we are able to defend the

validity of adverse actions, to show they were

not based on disability.
 If no adverse action is involved, employers

must be able to show that there was no

reasonable accommodation.
THE ADAAA
 What can you do now to prepare for the
changes in the ADA?
▪ Evaluate and revise your handbooks and
policies now. Be ready to act when the
regulations are final
▪ Train your supervisors and employees.
The scope of the ADA is expanded. The
unchanged parts of the Act, and most new
parts, should be covered with supervisors
THE INTERACTIVE PROCESS
 What is “the interactive process”
 Once an individual with a disability makes a

request for an accommodation “it may be

necessary for the covered entity to initiate an
informal, interactive process with the
qualified individual with a disability…”
 EEOC’s regulations on the ADA, 29 C.F.R. §

1630.2(o)(3) (2005).
THE INTERACTIVE PROCESS
• From a suggestion in regulations, this
process has been elevated to a required part
of an employer’s response to a request for
accommodation.
• An employer who fails to engage in the
interactive process can be penalized in later
litigation.
• This process probably benefits employer
more than employee.
THE INTERACTIVE PROCESS
 Clear that employees must notify the
employer of a physical or mental impairment
that causes a need for an accommodation.
 “The employer is not required to speculate as

to the extent of the employee’s disability or

the employee’s need or desire for an
accommodation.” Hammon v. DHL Airways,
Inc., 165 F.3d 441 (6th Cir. 1999).
THE INTERACTIVE PROCESS
 An accommodation request need not use the
words “reasonable accommodation” or any
other “magic words”
 The request must be sufficiently specific to

make clear to the employer:

▪ the individual has a disability that is
causing a work-related limitation; and
▪ the individual believes an accommodation
is needed in order to do the job
THE INTERACTIVE PROCESS
 This need to notify the employer can be excused
when a known disability interferes with
communications, or where the need for
accommodation is obvious.
 Tricky situations for employers:

▪ The employee has suffered in the past from

a disability, is it still in effect?
▪ There is no communication from an
individual with a disability. Do attendance rules
still apply?
THE INTERACTIVE PROCESS –
WHAT IS IT?
 Analyze the particular job involved, determine
its purpose and essential functions
 Consult with the individual involved to learn

the job-related limitations imposed by the

disability and how those limitations might be
overcome with a reasonable accommodation
 With the individual involved, identify possible

accommodations and assess the effectiveness

of each
THE INTERACTIVE PROCESS –
WHAT IS IT?
 Consider the preference of the individual to
be accommodated and select and implement
the accommodation that is most appropriate
for both the employee and the employer.
 EEOC’s Interpretive Guidance, 29 C.F.R. §

1630.9
 May not be necessary if reasonable

accommodation is easily identifiable

 Final step in process may not be required
THE INTERACTIVE PROCESS
“The interactive process is a mandatory rather
than a permissive obligation on the part of
employers under the ADA and … this
obligation is triggered by an employee or an
employee’s representative giving notice of
the employee’s disability and the desire for
accommodation.” Barnett v. U.S. Air, Inc.,
228 F.3d 1105, 1124 (9th Cir. 2000).
THE INTERACTIVE PROCESS –
I FORGOT!
 Most courts hold that the employer’s failure
to engage in the interactive process is not an
independent legal violation.
 However, failure to engage in the interactive

process can be used as evidence of a failure

to accommodate.
 Some courts hold that failure to engage in the

interactive process precludes prevailing on a

Motion for Summary Judgment.
THE INTERACTIVE PROCESS
THE EMPLOYEE’S OBLIGATIONS
 The employee must engage in the process in
good faith or lose right to a reasonable
accommodation
 If disability or need for accommodation is not

obvious, the employer may request medical

information describing the nature and
severity of the impairment, and its
restrictions; and which substantiates the need
for the requested reasonable accommodation.
THE INTERACTIVE PROCESS
THE POSITIVE ASPECTS
 Its required, so make the best of it.
 It will put the employer in a sympathetic light

before a jury – involving the employee in the

process to seek an accommodation.
 It limits the ability of the employee (or her

attorney) to suggest in litigation for the first

time some new reasonable accommodation.
 The employee may think of something you

didn’t, and avoid a fight over accommodation