1. What You Don’t Know About The ADA: Disabilities Law in Public Accommodations, Testing, and Employment By: Ken Ingram, Esq. & Michael Gartner, Esq. with assistance from Timothy Huffstutter, Esq. Whiteford, Taylor & Preston, LLP Washington, D.C. ACCET 2014 Conference San Diego, California

2. Background of the Americans with Disabilities Act (ADA) Originally passed July 26, 1990 Prohibits discrimination on the basis of disability. Applies to several areas, including employment (Title I) Governs employers with 15+ employees Also applies to public accommodations, including schools (facilities, testing, dorms, etc.)

3. Americans with Disabilities Act Amendments Act of 2008 (ADAAA) Signed into law by President Bush on September 25, 2008 Went into effect on January 1, 2009 Redefines “disability” Broadens application of the Act’s protections New regulations issued in late 2009 Further regulations enacted May 2011.

4. Public Accommodations The ADA and ADAAA prohibit discrimination on the basis of disability in public accommodations, such as hotels and schools. These considerations apply: - Must have qualified individual - With disability or record of disability - Who has suffered an adverse action as a result of disability

5. Public Accommodations Law requires public accommodations to be designed, constructed, and altered in compliance with the ADA. Structures completed prior to January 26, 1992, are grandfathered. BUT must comply with ADA as much as practicable and for any modifications. Facilities built or modified between January 26, 1992, and September 15, 2010, must comply with 1991 standards.

6. Public Accommodations Accommodation need not be made if: Disabled individual poses a direct threat to the health or safety of others. Modification fundamentally alters the nature of the goods, services, and/or accommodations. There is an undue burden There is structural impracticability When modifying a structure to create a path of travel, there is disproportionality (if cost to create accessible path is more then 20% of overall alteration)

7. Undue Burden Public facility must take steps to ensure that disabled persons are not excluded, denied services, segregated, or treated differently from other individuals because of absence of auxiliary aids. Exception: if provision of auxiliary aids and services fundamentally alters nature of goods, services, and/or facilities. Exception: undue burden-significant difficulty or expense.

8. ADAAA and Schools Cases applying the ADAAA are beginning to work their way through the judicial system, thus providing more guidance on its application. Schools cannot discriminate in: Application process Admission Testing Facilities

9. Schools: Who is Disabled? A student is considered disabled if he or she: Has a physical or mental impairment that “substantially limits” one or more “major life activities”; Has a record of such an impairment; or Is regarded as having an impairment (unclear how this applies in this context). With exception of correctional lenses, cannot take into account mitigating factors (i.e., medication for ADHD)

10. Schools: Expanded Definition of “Disability” Learning disabilities may impact “major life activities.” “Major life activities” now include: Concentrating Reading Thinking Accordingly, students with learning disabilities may use ADA to seek reasonable accommodations in testing.

11. Schools: Focus of ADAAA With the adoption of the ADAAA, courts focus less on whether a student is disabled and more on what accommodations a school provided. Still, the student must ask the school for accommodations, and the school may ask for documentation of the disability.

12. Schools: Reasonable Accommodations Reasonable accommodations may include: Additional time on tests. Untimed tests Changing the manner of providing answers (i.e. from written to verbal) Alternative presentation of material (i.e., Brailed or large print materials for visually impaired students)

13. Schools: Interactive Process The school, as a public accommodation, must engage in an interactive process with the disabled individual to address reasonable accommodations. This is most likely to apply in regard to testing.

14. Testing An entity that offers testing related to licenses, certification, or credentials for professional services must provide a reasonable accommodation when: 1) the requested accommodation is reasonable 2) it is necessary; and 3) it does not fundamentally alter the nature of the services provided.

15. The ADA in Employment Prohibits discrimination against qualified individuals with disabilities in: Job application procedures Hiring Firing Advancement Compensation Job training & all other terms and conditions of employment

16. 3 Key Elements: Qualified Individual With a disability, a record of a disability, or who is regarded as having a disability Who has suffered an adverse employment action as a result of discrimination based on the disability

17. “Qualified” Individual Able to perform the essential functions of the position, with or without a reasonable accommodation, unless that accommodation would cause an undue hardship

18. “Disability” A physical or mental impairment that substantially limits a major life activity (interpreted differently now)

19. One of the most misunderstood employment laws Vague terms, subject to interpretation “essential” function “reasonable” accommodation “major” life activity “undue” hardship Highly individualized analysis = hard to establish clear guidelines

20. The result… Courts left to create standards based upon individual cases

21. Courts effectively narrowed the scope of the Act Congress saw this narrowing as gutting the intended protections, and set out to revitalize the ADA

22. The ADAAA Imposes a Broader Definition of Disability No consideration of mitigating measures Look behind day to day function to what that would be absent medication, etc. But CAN consider the effect of ordinary eyeglasses and contacts

23. What is a Disability Then: Impairment that substantially limits a major life activity Must be of central importance to daily life Substantially limits = severely restricts or prevents Now: Impairment that affects at least one major life activity Need not be of central importance to daily life No definition of substantially limits, but requires broad interpretation Includes episodic/ in remission

24. The ADAAA provides a list of qualifying major life activities Caring for oneself, performing manual tasks, eating, sleeping, reading, concentrating, communicating, and working. Also includes major bodily functions – neurological, digestive, reproductive, immune system Regulations reiterate that under the recent Amendments, the ADA’s definition of “disability” is to be construed “in favor of broad coverage”

25. Undue Hardship Employer is not required to make accommodation when doing so imposes an undue hardship on the operation of the business An “action requiring significant difficulty or expense.” Must factor in: nature and cost of accommodation in relation to size, resources, nature, and structure of business operation.

26. The ADAAA – other provisions Prohibits reverse discrimination claims Also broadens protections for those “regarded as” having a disability Any adverse action “because of an actual or perceived physical or mental impairment” No need to show that the employer believed it affected a major life activity BUT, cannot be regarded as disabled if the perceived impairment is minor or transitory

27. Interactive Process Employer required to engage in an interactive dialogue with disabled individual to discuss disability and reasonable accommodations. Employee must notify employer of disability and request reasonable accommodations to trigger this responsibility.

28. New Regulations Regulations were issued on September 23, 2009, and May 2011. The regulations have caused significant headaches for employers in attempting to comply with ADA obligations. There has been a huge increase in the number of claims under the ADA, and many employers are settling disputes.

29. New Regulations Key points in regulations: Calls for broad construction of what constitutes a “disability” Addresses the meaning of “substantially limits” New focus on “impairments” Addresses the effect of mitigating measures on the issue of whether an impairment qualifies as a disability Alters interpretation of when someone has been “regarded as” having a disability

30. New Regulations Construction of term “disability” Preamble to proposed regulations acknowledges that “Many of the individuals actually brought within the new definition of ‘disability’ are likely to have less severe limitations.” While the regulations note that individuals with less severe limitations will require less onerous accommodations, the practical effect for employers is that it will be more difficult to determine whether a particular employee is properly considered to be disabled for ADA purposes. Indeed, the focus now is less on whether an employee is disabled and more on the accommodations provided to that employee.

31. New Regulations Clarification of “substantially limits” An impairment is a disability under the ADA if it “substantially limits” an individual’s performance of a major life activity. Under the proposed regulations, “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.”

32. New Regulations Clarification of “substantially limits” Example Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.

33. New Regulations Clarification of “substantially limits” The new regulations make clear that an impairment that substantially limits a major life activity need not limit other major life activities in order to be considered a disability. The practical effect of this change is that it is now much easier for an individual with a diagnosed illness to establish that he or she is disabled, without a detailed examination of the manifestations of that illness.

34. New Regulations Clarification of “substantially limits” Examples An individual whose endocrine system is substantially limited due to diabetes need not also show that he is substantially limited in eating or any other major life activity. 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.

35. New Regulations New focus on impairments Regulations seek to carry out intent of the Amendments to provide broader coverage by making clear that certain impairments will “consistently meet” the definition of disability, with the result being that an individual’s particular symptoms are not a significant factor in considering whether the ADA’s protections apply.

36. New Regulations New focus on impairments Length of impairment Notably, the regulations explicitly state that there is no durational minimum for an impairment in order for the impairment to qualify as a disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months. But there is an exception for impairments minor and transitory in nature. This exception explicitly excludes cold and flu, for example, from the definition of a disability.

37. New Regulations New focus on impairments Examples The law traditionally has routinely identified certain conditions as disabilities, e.g. blindness, deafness, intellectual disability, missing limbs, mobility impairment. The new regulations go further, listing autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, PTSD, obsessive compulsive disorder, and schizophrenia. These lists are not exhaustive

38. New Regulations New focus on impairments The regulations also identify, by way of examples, additional impairments that may be disabling depending on their effect on a particular individual. Listed impairments include asthma, high blood pressure, learning disabilities, back or leg impairments, psychiatric impairments, carpal tunnel syndrome, and hyperthyroidism. This list is also explicitly non-exhaustive.

39. New Regulations New focus on impairments Examples An individual with asthma who is substantially limited in respiratory functions and breathing compared to most people, as indicated by the effects experienced when exposed to substances such as cleaning products, perfumes, and cigarette smoke, is an individual with a disability. An individual with high blood pressure who is substantially limited in the functions of the circulatory system compared to most people, as indicated by the decrease in blood circulation caused by narrowing of the blood vessels, is an individual with a disability.

40. New Regulations New focus on impairments The regulations also identify certain impairments which are usually not disabilities. Temporary, non-chronic impairments of short duration with little or no residual effects (such as the common cold, seasonal or common influenza, a sprained joint, minor and non- chronic gastrointestinal disorders, or a broken bone that is expected to heal completely) usually will not substantially limit a major life activity.

41. New Regulations Effect of mitigating measures The regulations affirm that in considering whether an impairment qualifies as a disability, no weight is to be placed on the fact that the impairment may be controlled by the use of mitigating measures. Therefore, an individual who, because of medication or other treatment, has experienced no limitations relating to an impairment “nevertheless has a disability if the impairment would be substantially limiting without the mitigating measure.

42. New Regulations Effect of mitigating measures Example An individual who is taking a psychiatric medication for depression, or insulin for diabetes, has a disability if there is evidence that the mental impairment, or the diabetes, if left untreated, would substantially limit a major life activity. One exception Ordinary glasses or contact lenses

43. New Regulations Who is “regarded as” being disabled? An individual is “regarded as” having a disability if the individual suffers an adverse employment action based on an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. An employee thus does not need to prove that an employer perceived him as limited in some practical way, the employee must simply prove that the impairment, or the employer’s belief that the employee suffered from an impairment, motivated the adverse action.

44. New Regulations Who is “regarded as” being disabled? Conventional Example An employee who is fired from a food service job because the employer believes the employee has Hepatitis C has been regarded as disabled. Extreme Example contained in regulations An individual who is terminated because an employer believes that symptoms caused by a mild virus are actually symptoms of heart disease has been regarded as disabled. Practical problem: What happens when you discipline a person absent due to a broken leg which ultimately doesn’t heal properly? Is this “regarded as” or actual discrimination based on a disability?

45. The bottom line… Employees no longer excluded because impairment has limited impact on daily activities

46. The bottom line… Broadens the reach of the ADA’s provisions Potential for new claims More employees will have valid claims to accommodations

47. What Will Not Change Need to determine the essential functions of the position Need to reasonably accommodate disabled employees Duty not to discriminate