1. IMLA Presents EMPLOYMENT LAW FOR THE MUNICIPAL LAWYER November 9-11, 2008 Dallas, Texas Amendments to ADA a Watershed?? Presented by: Bettye Lynn Lynn Pham & Ross, LLP ©Lynn Pham & Ross, LLP 2008

2. AMENDMENTS TO ADA A WATERSHED??

3. BACKGROUND ADAAA (ADA Amendments Act) of 2008 Near-unanimous support in Congress Approved by business and disabled communities Signed by President on September 25 Effective date January 1, 2009 MOST SIGNIFICANT CHANGES TO EMPLOYMENT LAW SINCE FMLA ENACTED Overturned several Supreme Court decisions that had limited ADA Erases several employer defenses to ADA claims

4. REASONS BEHIND AMENDMENTS Study found plaintiffs lost 97% of all ADA claims Failure rate second only to prisoner’s cases Claims usually rejected for failing to meet strict definition of “disability” Congress concerned courts had unduly narrowed group of people it intended to protect in 1990 Purpose of ADAAA -- restore intent and protections of ADA Extensive negotiations between business and disability advocates for joint proposal

5. ADAAA’S PURPOSE: RESTORE BROAD COVERAGE Clear intent—reinstate broad scope of protection ADAAA strikes references to “43 million disabled” and that persons with disability were a “discrete and insular minority” Adds millions of Americans to those considered disabled Also amends Rehabilitation Act to parallel ADAAA

6. TOYOTA MOTOR v. WILLIAMS “Substantial limitation” in major life activity Plaintiff must prove “prevented or severely restricted in activity that is of central importance in most people’s daily lives” ADAA reinterprets: focus should be whether employer has complied with its obligations under ADA No more extensive analysis of whether person’s disability is an impairment

7. NEW LIST OF MAJOR LIFE ACTIVITIES Person who can’t perform one of these is automatically considered disabled:  Caring for oneself  Performing manual tasks  Seeing  Hearing  Eating  Sleeping  Walking  Standing

8. MAJOR LIFE ACTIVITIES—Cont’d  Lifting  Bending  Speaking  Breathing  Learning  Reading  Concentrating  Thinking  Communicating  Working-most controversial EXHAUSTIVE BUT NOT EXCLUSIVE

9. MAJOR BODILY FUNCTIONS Normal cell growth Normal immune system Digestive Bowel Bladder Respiratory Circulatory Endocrinal Reproductive Neurological Brain NO REQUIREMENT THAT THESE HAVE ANY RELATION TO ABILITY TO WORK AND SOME ARE WHOLLY UNRELATED TO WORK

10. MAJOR BODILY FUNCTIONS (cont’d) WILL COVER:  Insomnia  Dyslexia  Stuttering  Attention Deficit Disorder  Infertility Treatments

11. RESULT OF THESE EXPANDED LISTS GREATLY ENLARGES NUMBER OF INDIVIDUALS PROTECTED UNDER ADA

12. DISABILITY MITIGATION DEFENSE IS ELIMINATED Most significant change:  Sutton trilogy is overruled Trilogy held employees not protected under ADA if able to manage symptoms of disability by using medicine, prosthetics or other ways of reducing impairment—called “mitigating measures”  Hearing aids  Mobility devices  Medical devices ADAA prohibits that analysis and requires courts to evaluate disability without regard to mitigating measures Only 2 exceptions: eyeglasses and contact lenses Vision tests must permit person to wear corrective lenses, unless uncorrected vision is required by the job Result is significant expansion of persons protected by ADA

13. EXAMPLES OF EXPANSION Mitigating measures change will affect:  Employees who have: Epilepsy Diabetes Depression Bi-polar disorder Cancer High blood pressure Many other illnesses managed by medicine

14. EPISODIC IMPAIRMENTS AND THOSE IN REMISSION Amendments clarify that person with episodic impairment or impairment in remission are judged by the substantial limitation in major life activity when condition is active Example--cancer Reverses court decisions that conditions not protected because not currently suffering symptoms Examples:  PTSD  Epilepsy

15. “REGARDED AS” PRONG IS EXPANDED Old wording: employee had to show he was “regarded as” having impairment by employer Courts said this meant employer perceived employee to be incapable of performing not only denied job, but also broad range of jobs—meant employee had to show “substantial limitation” ADAA permits “regarded as” to be proved by adverse action because of actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity “Regarded as” excludes transitory and minor impairments if they last 6 months or less. THIS WILL LIKELY SIGINIFICANTLY EXPAND COVERAGE UNDER ADA May make disability a continuous state without reference to the ailment No accommodation to those only “regarded as” disabled No reverse disability discrimination claims will be recognized

16. DEFINITION ALSO CHANGED Old definition: Discrimination against an individual with a disability because of the disability New definition: Discrimination on the basis of disability Focus likely to change from individual’s impairment to merits of alleged discriminatory conduct

17. CONGRESS’ DIRECTION TO EEOC Revise ADA Regulations defining “substantially limits” as “unable to perform a major life activity...or significantly restricted as to... particular major life activity.” EEOC Regulations not likely before effective date of Amendments

18. PRACTICAL STEPS FOR EMPLOYERS TO TAKE NOW Review handbooks and policies to incorporate provisions of ADAAA—especially those related to accommodation requests—both for new hires and for current employees Make sure accurate job descriptions are in place for all employees Expect more accomodation requests, so now is time to train HR and managers about the amendments—especially as to responses to such requests and the change in analysis on mitigating measures Create protocols for dealing with accommodation requests Inject flexibility into policies and practices

19. PRACTICAL STEPS (cont’d) Be more wide ranging in interactive dialogues with employees and applicants and timely document all accommodation efforts and results—formalize this process Document timely legitimate performance criticism— must be able to show legitimate non-discriminatory reason for action Consider present adverse employment actions that may meet relaxed coverage standards of ADAAA Start analysis concluding employee is disabled under ADAAA Consider interaction of new ADAAA and FMLA

20. PRACTICAL IMPLICATIONS FOR THE EMPLOYER Burden of proof remains on employee New burden is not intended to be difficult to meet Relaxed standards will focus more on employers making reasonable accommodations than now occurs Higher accommodation costs are likely with increase in number of protected employees More difficult to defend against lawsuit by claiming employee not disabled under ADA More challenging to employer to manage day-to-day workplace situations Will lead to increased litigation

21. EMPLOYERS’ ACTIONS—Cont’d. Consult with counsel when deciding employee not entitled to accommodation Focus of litigation will change to issues about essential functions of job and to ability to perform them rather than whether employee meets definition of disabled Retroactivity??—unknown –watch for arguments that ADAAA should apply to pending claims, not just new ones Watch for issuance of EEOC regulations interpreting ADAAA Result: significant increase in litigation likely More costly and complex litigation likely—proof of whether accommodation was available, undue hardship existed and what are the essential job functions Also litigation will look at whether specific performance conduct standards are job-related and consistent with business necessity  what risks satisfy “direct threat” standard?  has reassignment been sufficiently explored?

22. Thank you! Bettye Lynn Attorney at Law ************************** Lynn Pham & Ross, LLP 306 West Broadway Avenue Fort Worth, Texas 76104 (817) 332-8504 (817) 332-8548 fax E-mail: Lynn@laborcounsel.netLynn@laborcounsel.net THIS IS NOT LEGAL ADVICE, PLEASE CONTACT YOUR LABOR AND EMPLOYMENT ATTORNEY REGARDING YOUR SITUATION ©Lynn Pham & Ross, LLP 2008