Slide 1:
Welcome to the 2010 
Legal Issues Webinar Series
The content and materials of this training are property of the DBTAC - Great Lakes ADA Center and cannot be distributed without permission.  This training is developed under NIDRR grant #H133A060097. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at adaconferences@adagreatlakes.org or toll free 877-232-1990 (V/TTY).

Slide 2:
Litigation under the ADA Amendments Act 
Presented by:
Barry Taylor, Legal Advocacy Director, Equip for Equality, 
Brian East, Senior Attorney, Advocacy Inc. 
September 29, 2010

Slide 3:
Overview
The ADA Amendments Act  & EEOC Proposed Regulations (NPRM)
Litigation Under the ADAAA
Courts Agree Congress Greatly Broadened the Definition of Disability 
Courts Have Applied The Expanded List of “Major Life Activities” 
Mitigating Measures Are No Longer Considered In Assessing Disability
“Regarded As” Claims
List of Specific Disabilities 
The New Standards in the ADAAA Also Apply to the Rehabilitation Act
The ADAAA’s Effect on State Law
Effect on Pleading Standards 
Does the ADA Amendments Act Apply Retroactively?

Slide 4:
ADAAA & NPRM
Acronyms for All

Slide 5:
Broad Interpretation of the Definition of Disability – ADAAA 
In the ADAAA, Congress: 
Stated the definition of disability “shall be construed in favor of broad coverage… to the maximum extent permitted by the terms of this Act.” 42 U.S.C. § 12102(4)(A), as amended.
Explicitly overruled U.S. Supreme Court cases that unduly restricted the definition of who is a person with a disability:
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) – held the definition of disability “needs to be interpreted strictly to create a demanding standard for qualifying as a disability” and requiring that an individual demonstrate a substantial limitation in activities of “central importance to daily life.” 
Slide 6:
Broad Interpretation of the Definition of Disability – ADAAA 
Sutton Trilogy – held  mitigating measures should be taken into account when assessing whether an impairment causes a “substantial limitation.”Sutton v. United Air Lines, 527 U.S. 471 (1999); Murphy v. United Parcel Service, 527 U.S. 516 (1999); Albertsons Inc. v. Kirkingburg, 527 U.S. 555 (1999).
Under Sutton &Toyota, many people with the following impairments were found not to have an ADA disability: 
Cancer, intellectual disability, epilepsy, diabetes, a bipolar condition, multiple sclerosis, back injuries, monocular vision, PTSD, depression, heart disease, HIV Infection, and asthma.

Slide 7:
Broad Interpretation of the Definition of Disability – EEOC NPRM
EEOC NPRM reinforces the idea that disability should now be much easier to prove. (See EEOC fact sheet).
NPRM reinforces the Congressional mandate that courts should focus on whether covered entities have complied with their obligations instead of disability. 
EEOC fact sheet notes that “far more ADA cases will focus on whether discrimination actually occurred.” 
29 C.F.R. §§ 1630.2(j)(2)(i), 1630.2(j)(5)(i), 1630.2(j)(6)(i); 29 C.F.R. § 74 Fed. Reg. at 48440-424, 44; Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008, http://eeoc.gov/policy/docs/qanda_adaaa_nprm.html. 

Slide 8:
Broad Interpretation “Substantially Limits” – ADAAA 
Courts should use a less stringent standard when determining whether a particular impairment is substantially limiting so that more people with disabilities will be able to proceed with their ADA cases. 
“Substantial limitation,” like all of the terms in the definition of disability, must be construed as broadly as possible. 
Rejects Toyota “severe restriction” standard as it “has created an inappropriately high level of limitation...”
Rejects EEOC Title I regulation defining the term “substantially limits” as “significantly restricted.” 
Substantial limitations are measured against “most people in the general population.”
42 U.S.C. § 12102(4)(A); Pub. L. 110–325, § 2(b)(5), 122 Stat. 3553 (Sep. 25, 2008), set out in the Note to 42 U.S.C. § 12101.

Slide 9:
Broad Interpretation “Substantially Limits” – EEOC NPRM
 “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a major life activity.”
 Rejects Toyota’s “central importance to daily life“ standard.
Example: “Someone with a 20# 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….” 
Also uses the term “most people” rather than “average person.” 
Emphasizes that “the comparison… may be made using a common-sense standard, without resorting to scientific or medical evidence.”
29 C.F.R. § 1630.2(j), 74 Fed. Reg. at 48440; 29 C.F.R. § 1630.2(j)(2)(iv), 74 Fed. Reg. at 48440; EEOC Q&A, supra, Question 6. 

Slide 10:Broad Interpretation “Substantially Limits” – EEOC NPRM
No longer use the condition/manner/duration terminology
A substantial limitation may be based on the length of time a person can perform the activity, the distance the person can walk, or the weight the person can lift.
“… the time and effort required to think or concentrate, the diminished capacity to effectively interact with others, the length or quality of sleep the individual gets, the individual’s eating patterns or appetite,” or the amount of pain experienced.
An impairment’s duration for “several months” is sufficient to show a substantial limitation, and “an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”
29 C.F.R. § 1630.2(j)(6)(i)(D), (F), (E), (D); 74 Fed. Reg. at 48442;  29 C.F.R. § 1630.2(j)(2)(v), 74 Fed. Reg. at 48440. See also, 29 C.F.R. Part 1630 App., § 1630.2(j), 74 Fed. Reg. at 48446–48447.

Slide 11:
Broad Interpretation “Substantially Limits” – EEOC NPRM
Relevant inquiry is “how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” 
However, “temporary, non-chronic impairments of short duration with little or no residual effects” will not be disabilities…”
Examples:  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. 
Pregnancy is not a disability, although “certain impairments resulting from pregnancy … may be disabilities if they substantially limit…”
29 C.F.R. §§ 1630.2(j)(2)(vi), (j)(8), (j)(2)(v), 74 Fed. Reg. at 48443; EEOC Q&A, supra, Question 18; 29 C.F.R. § 1630.2(j)(2)(v), 74 Fed. Reg. at 48440.

Slide 12:
Episodic Conditions and Those in Remission are Covered
ADAAA:  An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 
EEOC NPRM: The EEOC NPRM reinforces the ADAAA’s statement that impairments that are episodic or in remission can still qualify as disabilities.
NPRM includes a non-exclusive list of impairments that may be episodic: “epilepsy, hypertension, multiple sclerosis, asthma, cancer, and psychiatric disabilities such as depression, bipolar disorder, and post-traumatic stress disorder.”
29 C.F.R. § 1630.2(j)(2)(iv)(A), 74 Fed. Reg. at 48440; 29 C.F.R. Part 1630 App., § 1630.2(j), 74 Fed. Reg. at 48447.

Slide 13:
Major Life Activities – ADAAA 
Definition of actual disability ADA (and ADAAA):
Physical or mental impairment that substantially limits one or more major life activities
No definition of “major life activities” in the text of the original ADA and no examples.
ADAAA:  The term major life activity also includes the operation of the following major bodily functions: immune system, neurological, normal cell growth, brain, digestive, respiratory, bowel, circulatory, bladder, endocrine and reproductive functions. 42 U.S.C. § 12102(2)(B), as amended.

Slide 14:
Major Life Activities 
In ADAAA (and previously identified by EEOC):
caring for oneself  	 	 
lifting					
hearing 					
eating				
sleeping				
working 	
walking & standing
seeing
learning
speaking
breathing
concentrating & thinking
performing manual tasks

Slide 15:	
Major Life Activities 
In ADAAA (and previously identified by EEOC):
reading 
bending 
communicating
In NPRM but not in text of ADAAA: 
interacting with others
reaching
sitting
Neither lists of major life activities in the ADAAA or the
NPRM is exhaustive - no negative implication by omission

Slide 16:
New Category: 
Major Bodily Functions In ADAA				
normal cell growth
immune system					
digestive 			
Bowel				
Bladder
Brain
Respiratory
Circulatory
Neurological
Endocrine
Reproductive Funcations
Added in NPRM
Special sense organs and skin
Genitourinary
Cardiovascular
Hemic
Lymphatic
Musculoskeletal
EEOC NPRM contains two lists: 
1. Impairments that should consistently be a disability.
2. Impairments that may be disabling for some but not others.

Slide 17:
Possible Application of Major Bodily Functions
immune system: HIV/AIDS, auto-immune disorders, lupus
normal cell growth: cancer
digestive: Crohn’s disease, celiac disease
bowel: ulcerative colitis
bladder: kidney disease
reproductive functions: infertility
neurological: multiple sclerosis, epilepsy
brain: schizophrenia, developmental disabilities
respiratory: asthma
circulatory: heart disease, high blood pressure
endocrine: diabetes
Note: Inclusion of major bodily functions will make it much easier for people with many of these impairments identify a major life activity.

Slide 18:
Impairment – ADAAA
ADAAA:  No definition for the term “impairment,” but:  
Must be as broadly construed as possible. 
 Regarded-as disability claims are not actionable if the impairment 	is both transitory and minor.
Suggests that in “present” or “record of” cases, the term “impairment” may include conditions that are both transitory and/or minor. 

Slide 19:
Impairment – EEOC NPRM
The definition of “impairment” is substantially similar to the original EEOC definition, although the preferred term “intellectual disability” is used instead of the disfavored term, “mental retardation.” 
Examples:  asthma, back impairments, carpal tunnel syndrome, hypertension, hyperthyroidism, leg impairments, a facial tic, carpal tunnel syndrome, Hepatitis C, and heart disease. 
Mental impairments include panic and anxiety disorders, forms of depression beyond just major depression, & dyslexia.
29 C.F.R. § 1630.2(j), 74 Fed. Reg. at 48442.

Slide 20:
Impairments – EEOC NPRM
Examples of impairments that will consistently meet the definition include, but are not limited to-”
autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, MS, 	muscular dystrophy, PTSD, OCD, major depression, bipolar disorder, 	or schizophrenia.
Impairments that may be disabling for some but not others: 
High blood pressure, hyperthyroidism, back or leg impairments, asthma, psychiatric conditions (e.g., anxiety or panic disorders, (non-major) depression, or a learning disability.
29 C.F.R. § 1630.2(j), 74 Fed. Reg. at 48442.

Slide 21:
Mitigating Measures are Not Considered in Assessing Disability – ADAAA 
Rejects Sutton and defines mitigating measures by way of a non-exhaustive list: 
Medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
“Ordinary eyeglasses or contact lenses” are defined as lenses that are intended to fully correct visual acuity or eliminate refractive error. 
Use of assistive technology;
Reasonable accommodations or auxiliary aids or services; or
Learned behavioral or adaptive neurological modifications.
42 U.S.C. § 12102(4)(E)(ii) and (iii).  
Slide 22:
Mitigating Measures – EEOC NPRM
Similar list of mitigating measures but adds: “surgical interventions, except for those that permanently eliminate an impairment.”
Differentiates “ordinary eyeglasses or contact lenses” from assistive technology , low-vision devices that provide magnification or enhance an image. 29 C.F.R. § 1630.2(3)(ii)(A), 74 Fed. Reg. at 48441.
An employer cannot use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless it is job-related and consistent with business necessity. 29 C.F.R. § 1630.10(b), 74 Fed. Reg. at 48444. 
Comments to EEOC NPRM:  People who must take a vision test without glasses or contacts “will usually be covered under the ‘regarded as’ prong of the definition of disability.” Note to 29 C.F.R. § 1630.0(b), 74 Fed. Reg. at 48450.

Slide 23:
Mitigating Measures – EEOC NPRM
Look at limitations without the mitigating measure,” explicitly rejecting caselaw to the contrary. 
Example: An  individual who is “taking a psychiatric medication for depression, or insulin for diabetes, or anti-seizure medication for a seizure disorder has a disability if there is evidence that … [such impairment], if left untreated, would substantially limit a major life activity.”
Benefits of mitigating measures may be considered in showing ability to perform essential job functions.
Negative side effects of mitigating measures may be considered in assessing disability.
29 C.F.R. § 1630.2(j)(3)(i), 74 Fed. Reg. at 48440.

Slide 24:
“Regarded As” 
The bill broadens coverage under the ADA’s “regarded as” prong of the definition of disability. 
This prong may apply “whether or not the impairment limits or is perceived to limit a major life activity.” 
No reasonable accommodations for people who are only covered under the “regarded as” prong.
Exception: Impairments that are “both transitory (lasting or expected to last for six months or less) and minor.”
Sprains, fractures that heal completely, mild intestinal virus,…
BUT: Does not establish a durational minimum for the other prongs – “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” 29 C.F.R. § 1630.2(j)(2)(v), 74 Fed. Reg. at 48440.

Slide 25:
“Record Of” – ADAAA & EEOC NPRM
ADAAA: No explicit changes.
EEOC NPRM:  Makes it clear “record of”
Is to be construed broadly
may apply even if there’s a misclassification
A “record of” disability will support a failure-to-accommodate claim. 29 C.F.R. § 1630.2(o)(4), 74 Fed. Reg. at 48443.
EEOC Guidance:  An employer need not have relied on an actual written record of a disability. EEOC Q&A, supra, Question 19.

Slide 26:
Other topics – EEOC Authority & Rehab Act Conformity
Authority to Issue Regulations
ADAAA:  Clarifies that the authority to issue regulations implementing the Act’s definition of disability is granted to the EEOC, DOJ, and DOT.
This change responds to the Supreme Court’s hesitation to accept EEOC regulations defining disability.
42 U.S.C. § 12205(a); See, e.g., Toyota Motor, supra, 534 U.S. at 194.
Rehabilitation Act Conformity
 ADAAA: ADA and Rehabilitation Act of 1973 shall use the 	same definition of disability. 
29 U.S.C. § 705(9)(B) and (20)(B), as amended.

Slide 27:
Other topics – Does the ADAAA Apply Retroactively?
Does the ADA Amendments Act Apply Retroactively?
ADAAA: Effective date of the law was January 1, 2009. Pub. L. 110–325, § 8, 122 Stat. 3553 (Sep. 25, 2008), codified at, 42 U.S.C. §12101.
EEOC Guidance:  ADAAA does not apply retroactively. Contrasted with Lilly Ledbetter Act which exhibits a clear Congressional intent. EEOC Q&A, supra, Question 1.
 “The ADAAA would apply to denials of reasonable accommodations where a request was made, or an earlier request was renewed, on or after January 1, 2009.” EEOC Q&A, 	supra, Question 1, cited in Lawson v. Plantation General Hosp., L.P., ___ F. Supp. 2d ___, 2010 WL 1258058, at *13 (S.D. Fla. March 30, 2010).

Slide 28:
Litigation
Litigation under the ADA Amendments Act and Potential Future Issues for Litigation

Slide 29:
Courts Agree Congress Broadened the Definition of Disability
Fournier v. Payco Foods Corp., 611 F. Supp. 2d 120, (D.P.R. 2009) 
 “Overarching purpose of the [ADAAA] is to reinstate the ‘broad scope of protection’ available under the ADA.” 
Kingston v. Ford Meter Box Co., Inc., 2009 WL 981333, (N.D. Ind. Apr. 10, 2009) 
 Congress criticized the judicial elimination of “protection for many 	individuals whom Congress intended to protect.” 
Brodsky v. New England School of Law, 617 F. Supp. 2d 1 (D. Mass. 2009) 
ADA amendment is undoubtedly intended to ease the burden of plaintiffs bringing claims pursuant to that statute.” 

Slide 30:
Case on Expanded Coverage
Gil v. Vortex, 697 F. Supp. 2d 234 (D. Mass. March 25, 2010)
Employee with monocular vision terminated on January 2, 2009 when he sought to return to work following surgery. 
ADAAA’s effective date was 1/1/09. 
Employee claimed his vision impairment substantially limited him in the major life activities of seeing and working.  
Court:  Employee had a disability under the ADAAA. 
Also a “regarded as” claim as employer took adverse action due to the fear that he would injure himself due to his impairment.  
Noted that the employee likely would not have been successful with his claim prior to the ADAAA.

Slide 31:
Substantial Limitation
Franchi v. New Hampton School, 656 F. Supp. 2d 252 (D.N.H. 2009) 
Court: Employee’s eating impairment substantially limited 	her in eating under the ADAAA’s broad construction.
Spent 6 weeks in outpatient & inpatient eating disorder clinics 
Still lost nearly five pounds in subsequent 16-day period, dropping her weight to 93% of its ideal. 
“Condition … required a careful watch over her food intake to protect against potentially dangerous weight loss.”  
Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010)
Court found no ADA disability under the pre-ADAAA definition for a plaintiff with psoriatic arthritis but said under the ADAAA, it would be “easier for a plaintiff with an episodic condition” to establish disability.

Slide 32:
Courts Have Applied An Expanded List of “Major Life Activities”
Horgan v. Simmons, 2010 WL 1434317 (N.D. Ill. April 12, 2010) 
 Employee with HIV terminated after disclosing his HIV status.
 Employee alleged that his supervisor “demanded” to know whether he had “something medical going on,” so he felt “compelled” to disclose that he was HIV positive.”
 Claimed discriminatory termination & impermissible medical inquiries.  
 Court: Applied ADAAA and held that “functions of the immune system” constitute major life activities under the definition of disability.  
Noted EEOC’s proposed regulations list HIV as an impairment that consistently meets the definition of disability.  
Mentioned Congress instructed courts that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” 

Slide 33:
Courts Have Applied An Expanded List of “Major Life Activities”
Verhoff v. Time Warner Cable, Inc., 299 Fed. Appx. 488, 494 (6th Cir. 2008) (unpublished)
 “There is no longer any dispute that ‘sleeping’ and ‘thinking’ are major 	life activities.”
Expectation: Less litigation over disability issues, more litigation on: 
Qualified 
Direct threat 
Undue Hardship
Deference to EEOC Regulations (e.g., musculoskeletal system as a major bodily function)
Unlisted Major Life Activities: Sexual relations, driving, commuting.

Slide 34:
Mitigating Measures Are No Longer Considered in Assessing Disability
Rohr v. Salt River Project Agricultural Improvement and Power District, 555 F.3d 850(9th Cir. 2009)
 Court:  “Impairments are to be evaluated in their unmitigated state…”
 “… for example, diabetes will be assessed in terms of its limitations 	on major life activities when the diabetic does not take insulin 	injections or medicine and does not require behavioral adaptations 	such as a strict diet.”
Note: preferred language is “person with diabetes” rather than “diabetic.”

Slide 35:
Mitigating Measures Are No Longer Considered in Assessing Disability
Sleep problems assessed without considering sleep medication - Verhoff v. Time Warner Cable, Inc., 299 Fed. Appx. 488 (2008)
 Hearing aids not considered - Godfrey v. New York City Transit 	Authority, 2009 WL 3075207 (E.D.N.Y. Sep. 23, 2009). 
 Prosthetics no longer considered - E.E.O.C. v. Burlington Northern& Santa Fe RR Co., 621 F. Supp. 2d 587 (W.D. Tenn. June 3, 2009).
 ADHD must be considered without Adderall medication – Geoghan v. Long Island R.R., 2009 WL 982451 (E.D.N.Y. Apr. 9, 2009).
 Side effects from medical treatment may be considered as potentially negative side effects of medical treatment as side effects from medication may themselves constitute an impairment under the ADA - Sulima v. Tobyhanna Army Depot, 602 F.3d 177 (3d Cir. 2010).

Slide 36:
“Regarded As” Claims
 Courts agree - proof of an actual or perceived impairment is sufficient. 
 No longer a requirement that the impairment be limiting in any way	(either actually or perceived). See. e.g., Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 566 (6th Cir. 2009). 
Under the ADAAA, and “contrary to Sutton, an individual who is ‘regarded as having… an impairment’ is not subject to a functional test.” - Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 240 (D. Mass. 2010). 
“Congress dramatically expanded the reach of the ADA by protecting individuals who are ‘regarded as’ having a disabling impairment even 	when the impairment neither is, nor is perceived to be, substantially limiting.” - Brooks v. Kirby Risk Corp., 2009 WL 3055305, at *3 (N.D.Ind.Sep. 21, 2009). 
Prior “regarded as” case law is superseded by the ADAAA. - Loperena v. Scott, 2009 WL 1066253 (M.D. Fla. Apr. 21, 2009). 

Slide 37:
List of Specific Disabilities
Horgan v. Simmons, 2010 WL 1434317 (N.D. Ill. April 12, 2010)
Court: Noted NPRM lists HIV as an impairment that consistently meets the definition of disability. 
“It is certainly plausible—particularly, under the amended ADA—that Plaintiff's HIV positive status substantially limits a major life activity: 	the function of his immune system.” 
“Such a conclusion is consistent with the EEOC’s proposed regulations to implement the ADAAA which lists HIV as an impairment that will consistently meet the definition of disability.” 
Also noted that HIV may substantially limit the major bodily function of the immune system. 
Geoghan v. Long Island R.R., 2009 WL 982451 (E.D.N.Y. Apr. 9, 2009)  
Court:  ADAAA is intended to cover people with ADHD.

Slide 38:
The New Standards in the ADAAA Also Apply to the Rehabilitation Act
Franchi v. New Hampton School, 656 F. Supp. 2d 252 (D.N.H. 2009)
The ADAAA applies to Rehabilitation Act claims, and in the absence of contrary argument by the defendant, to the Fair Housing Act as well. 

Slide 39:
The ADAAA’s Effect on State Law
Damron v. Butler County Children’s Services, 2009 WL 5217086, at *10 n.14 (S.D. Ohio Dec. 30, 2009) 
 “It is yet unclear whether federal caselaw applying the ADAA will also be applicable to the analysis of Ohio law disability discrimination claims or whether disability claims under Ohio law will continue to be analyzed using the pre-amendment standards.” 
Some states have amended their own statutes to track the ADAAA,	e.g., Tex. H.B. 978, 81st Leg., R.S. (2009).
It is unclear if such amendments are necessary if case law already required conforming state law to the ADA. See Munoz v. Echosphere, L.L.C., 2010 WL 2838356, at *10 (W.D. Tex. July 15, 2010). 

Slide 40:
The ADAAA’s Effect on State Law
Some courts appear to assume that state laws that follow ADA guidance will conform to the ADAAA. 
ADAAA standards apply under Mass. state law based on state-law precedent rejecting Sutton and adopting more 	liberal disability standard. - Gil v. Vortex, LLC, 697 F. Supp. 2d 234, (D. Mass. 2010); See also, Medlin v. Springfield Metro. Hous. Auth., 2010 WL 3065772, at *7, n.5 (Ohio App. Aug. 6, 2010). 
Note: Some state laws may explicitly mirror federal law or set federal law as a minimum standard to be followed.

Slide 41:
Effect on Pleading Standards
The expanded definition of disability makes compliance with federal pleading rules easier. 
See Rule 12 of the Federal Rules of Civil Procedure
 “It is certainly plausible—particularly, under the amended ADA—that Plaintiff's HIV positive status substantially limits a major life activity: 	the function of his immune system.” Horgan v. Simmons, 704 F.Supp.2d 814, 819 (N.D. Ill. April 12, 2010).
“Here, the facts viewed in the light most favorable to Gil establish a plausible allegation that Vortex believed him to be disabled, and terminated him as a result.” Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 239–240 (D. Mass. 2010). 
However, a plaintiff must still allege the major life activities that were substantially limited. Broderick v. Research Foundation of State University of New York, 2010 WL 3173832 (E.D.N.Y. Aug. 11, 2010).

Slide 42:
Does the ADA Amendments Act Apply Retroactively?
The U.S. Supreme Court has held that generally, statutes are not applied retroactively. The reasoning is that it is unfair to hold a defendant liable for a standard that is articulated after the alleged violation occurred. See, e.g. Landgraf v. USI Film Products, 511 U.S. 244 (1994), and Rivers v. Roadway 	Exp., Inc., 511 U.S. 298 (1994). 
All courts that have looked at this issue so far have held that the ADAAA, as a general matter, does not apply retroactively. See e.g., Nyrop v. Indep. Sch. Dist. No. 11, ___ F.3d ___, 2010 WL 3023665, at *4 n.4 (8th Cir. Aug. 4, 2010); Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 33 n.7 (1st Cir. 2010); Hennagir v. Utah Dept. of 	Corrections, 587 F.3d 1255, 1261 n.2 (10th Cir. 2009) (implicitly finding no retroactivity).

Slide 43:
Does the ADA Amendments Act Apply Retroactively?
Exception: 
Jenkins v. National Board of Medical Examiners, 2009 WL 331638 (6th Cir. Feb. 11, 2009)
Plaintiff had a reading disorder and was seeking an accommodation of additional time on a medical licensing examination. 
Trial court: Relying on previous Supreme Court precedent, the trial	court found that the plaintiff did not have an ADA disability.
Appellate Court: ADAAA may be applied retroactively when the plaintiff was only seeking prospective injunctive relief, as opposed to monetary damages per Supreme Court precedent. 
Rather than seeking damages for some past act of discrimination, the plaintiff was seeking the right to receive an accommodation on a test that will occur in the future, well after the ADAAA’s effective date.  

Slide 44:
Does the ADA Amendments Act Apply Retroactively?
Possible Exception: 
Michael M. v. Board of Educ. of Evanston Tp. High School Dist. No. 202, 2009 WL 2258982, at *3 (N.D. Ill. July 29, 2009) 
Student and School disputed whether the student was entitled to a 	reasonable accommodation under Section 504 and the ADA due to his 	ADHD. 
Student filed this lawsuit, appealing a decision from a Section 504 hearing that found in favor of the School. 
Student sought a court order compelling Defendants to immediately convene a meeting in order to determine a student’s eligibility for Section 	504 accommodations under the ADAAA. 
Court: Denied School’s motion to dismiss, suggesting that it allowed retroactive application of the to determine student’s future eligibility for §504 accommodations under the ADAAA. 

Slide 45:
Does the ADA Amendments Act Apply Retroactively?
Several courts have distinguished Jenkins.
Retroactive application is not warranted when the focus of the plaintiff’s complaints were on the employer’s past conduct. Nyrop v. Independent School Dist. No. 11, 2009 WL 961372 (D. Minn. April 7, 2009); 	Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255 (10th Cir. 2009).
Courts have occasionally consulted the ADAAA in other cases. 
 “While we decide this case under the ADA, and not the ADAAA, the original congressional intent as expressed in the amendment 	bolsters our conclusions.” Rohr v. Salt River Project Agricultural Improvement and Power District, 555 F.3d 850, 862 (9th Cir. 2009).
Bowel functioning is a major life activity. - Green v. American University, 647 F. Supp. 2d 21(D.D.C. 2009).
Concentrating is a major life activity. - Geoghan v. Long Island R.R., 2009 WL 982451(E.D.N.Y. Apr. 9, 2009).

Slide 46:
Does the ADA Amendments Act Apply Retroactively?
Similarly, there are a few cases that seem to follow ADAAA standards without expressly finding retroactivity.  
Quinones v. Potter, 661 F.Supp.2d 1105, 1119 (D. Ariz. 2009)
The definition of “disability” and “substantially limits” are “to be broadly construed.”
Plaintiff raised a genuine issue that she was substantially limited in 	lifting a, given that she can only left between 5 and 20 pounds, and restricted in the continuous and repetitive overhead use of her arms.
Franchi v. New Hampton School, 656 F. Supp. 2d 252 (D.N.H. 2009)
A person with an eating impairment is covered under the ADA.

Slide 47:
ADA Litigation Post – ADAAA 
 As courts now recognize that most plaintiffs will more easily meet the definition of disability, the focus of the courts’ inquiry in ADA cases will be on whether covered entities have met their legal obligations under the ADA – as Congress intended.  
Issues that have been occasionally litigated
Qualified (including essential job function issues)
Direct threat
Issues that have been rarely litigated:
“Undue hardship”

Slide 48:
ADA Litigation Post – ADAAA 
May be litigation over deference given to the EEOC’s interpretation.
 NPRM includes additional an major life activity (interacting with others) 
NPRM also adds major bodily functions (musculoskeletal, genitourinary, cardiovascular, and other systems).
May be litigation over activities not listed in ADAAA or NPRM
Sexual Relations
Driving
Commuting
May be litigation over listing of mitigating measures.
 NPRM includes “surgical interventions, except for those that permanently eliminate an impairment.” 29 C.F.R. § 1630.2(j)(3)(ii)(E), 74 Fed. Reg. at 48441.

Slide 49:
Thank you for your attention today
Litigation under the ADA Amendments Act

Slide 50:
General ADA Resources
National Network of ADA Centers: www.adata.org;  800/949 –4232(V/TTY)
Equal Employment Opportunity Commission (EEOC): www.eeoc.gov 
Equip For Equality: www.equipforequality.org; 800/537-2632 (Voice); 800/610-2779 (TTY)
Job Accommodation Network: http://askjan.org

Slide 51:
Thank you for Participating In Today’s Session
Next Legal Webinar: 
November 10, 2010
Service Animals and the ADA

Slide 52:
Session Evaluation
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Slide 53:
Litigation under the ADAAA
The End
Presented by:
Barry Taylor, Legal Advocacy Director, Equip for Equality,
Brian East, Senior Attorney, Advocacy Inc. 
September 29, 2010
Equip for Equality is providing this information under a subcontract with the DBTAC - Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability  of Rehabilitation and Research Award No. H133A060097.