Slide 1:
Welcome to the 2013 
Legal Issues Webinar Series
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Slide 10:
The Litigation Landscape Five Years After The Passage of the ADA Amendments Act
Presented by:
Barry Taylor, VP for Civil Rights and Systemic Litigation, Equip for Equality
Rachel Weisberg, Staff Attorney, Equip for Equality
September 18, 2013

Slide 11:
Continuing Legal Education Credit for Illinois Attorneys
This session is eligible for 1.5 hours of continuing legal education credit for Illinois attorneys.
Illinois attorneys interested in obtaining continuing legal education credit should contact Barry Taylor at: barryt@equipforequality.org
This slide will be repeated at the end.

Slide 12:
Outline
Outline
Background
Broad definition of disability and substantially limits
Episodic conditions and conditions in remission
Mitigating measures
Major life activities and major bodily functions
EEOC List of Impairments
“Regarded as” prong
Transient or short-term impairments
Regulatory authority
Retroactivity
Additional resources

Slide 13:
Background
1990: Congress passed the ADA
Adopted definition of disability from Rehab Act
Supreme Court previously declared the definition of disability to be “broad” 
School Bd. of Nassau County, v. Arline, 480 U.S. 273, 285 (1987)
Courts narrowly interpreted the ADA’s definition of disability
1999: Sutton trilogy
2002: Toyota v. Williams
Result = courts regularly found plaintiffs could not establish an ADA-qualifying disability and dismissed claims 

Slide 14:
ADA Amendments Act
2008: Congress passed the ADA Amendments Act
ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553 (2008)
Goals
“[R]einstat[e] a broad scope of protection” for people with disabilities diminished through erroneous judicial decisions 
Provide the “clear and comprehensive national mandate for the elimination of discrimination” initially intended by the ADA 
2013: Five years since Congress passed the ADAAA
Question: How are courts interpreting the definition of disability under the ADAAA’s new standards? 

Slide 15:
ADAAA Broad Coverage
The definition of disability should “be construed in favor of broad coverage . . . to the maximum extent permitted by the terms of th[e] Act.”42 U.S.C. § 12102(4)(A)
Rejects the Supreme Court’s 2002 decision in Toyota Motor Manufacturing v. Williams, which held that the definition of disability should be “interpreted strictly” to create a “demanding standard.”
The EEOC regulations reiterate this requirement. 29 C.F.R. § 1630.1(c)(4)
Slide 16: 
Case Law:  Broad Coverage
Courts are uniformly acknowledging that the ADAAA significantly broadened the ADA’s definition of disability.
Examples of affirmative statements: 
The “overarching purpose of the [ADA Amendments Act] is to reinstate the ‘broad scope of protection’ available under the ADA.” Fournier v. Payco Foods Corporation, 611 F. Supp. 2d 120, n. 9 (D.P.R. 2009).
The ADA Amendments Act “is undoubtedly intended to ease the burden of plaintiffs bringing claims pursuant to that statute.” Brodsky v. New England School of Law, 617 F. Supp. 2d 1, 4 (D. Mass. 2009).

Slide 17:C
Case Law:  Broad Coverage
More examples:
“The ADAAA ‘broadened the category of individuals entitled to statutory protection from discrimination under the ADA.’” Semenko v. Wendy’s Intern., Inc., 2013 WL 1568407, at *6 (W.D. Pa. April 12, 2013).
“The ADAAA seeks to broaden the scope of disabilities covered by the ADA after that scope had been narrowed by Supreme Court interpretation.” Kravits v. Shinseki, 2012 WL 604169, at *5 (W.D. Pa. Feb. 24, 2012).
“We construe this definition liberally, with an eye towards ‘broad coverage of individuals under’ the ADA.” Diaz v. City of Philadelphia, 2012 WL 1657866, at *9 (E.D. Pa. May 10, 2012). 

Slide 18:
Case Law: Broad Definition
Many courts reach conclusions about disability quickly, without extensive analysis. 
Edwards v. Chevron U.S.A., Inc. 
2013 WL 474770 (S.D. Tex. Feb. 7, 2013)
Plaintiff provided sworn statements that she had been diagnosed with a medical bowel disease that flares up from time to time, requiring her to take several months of medical leave 
Without making any other statements or describing the plaintiff’s limitations in any greater detail, the court concluded that “[u]nder the amended ADA, that is sufficient” 

Slide 19:
ADAAA and Case Law:  Substantially Limits
Courts are acknowledging the EEOC’s regulations that “[w]hether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1) 
Gibbs v. ADS Alliance Data System, Inc. 
2011 WL 3205779 (D. Kan. July 28, 2011)
Employee with carpel tunnel syndrome underwent multiple surgeries and was unable to use her left hand for a few weeks 
Court noted that “this inquiry is not meant to be ‘extensive’ or demanding” 
Allowed case to proceed, concluding that employee provided “some evidence that plaintiff's condition affected her ability to perform manual tasks”

Slide 20:
Case Law:  Substantially Limitsaw Substantially Limits
Courts are considering condition, manner and duration when determining whether an impairment substantially limits a major life activity. 
  
Howard v. Pennsylvania Dept. of Public Welfare 
2013 WL 102662 (E.D. Pa. Jan. 9, 2013)
Considering the pain a plaintiff with fibromyalgia experiences while performing activities and determining that the plaintiff presented sufficient evidence that she has a disability
    
Molina v. DSI Renal, Inc.
 840 F. Supp. 2d 984 (W.D. Tex. 2012)
Considering pain experienced and focusing less on “outcomes” when determining that plaintiff’s back injuries could constitute disability under analogous state law

Slide 21:
ADAAA Episodic Conditions and Conditions in Remission
ADAAA rules of construction: “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).
  
EEOC regulations reiterate this statutory requirement. 29 C.F.R. § 1630.2(j)(1)(vii).

The vast majority of courts are properly evaluating whether an individual’s disability is substantially limiting when active. 

Slide 22:
Case Law:  Episodic Conditions
Kinney v. Century Services Corp. II 
2011 WL 3476569 (S.D. Ind. Aug. 9, 2011)
An employee with “isolated bouts” of depression could have an ADA disability under the ADAAA’s “new paradigm” 

Edwards v. Chevron U.S.A., Inc. 
2013 WL 474770 (S.D. Tex. Feb. 7, 2013)
A plaintiff with a medical bowel disease that “flared up from time to time” could be a disability
Court noted that the definition of disability “now includes” episodic impairments that “would substantially limit a major life activity when active” 

Slide 23:
Case Law:  Episodic Conditions
Howard v. Pennsylvania Dept. of Public Welfare 
2013 WL 102662 (E.D. Pa. Jan. 9, 2013)
Defendant asserted that plaintiff’s fibromyalgia was not a disability because her symptoms “wax and wane.” 
Court declined to consider this argument because the “ADAAA plainly forecloses this line of reasoning” 

Slide 24:
Case Law:  Episodic Conditions
Courts have found the following episodic conditions to constitute disabilities: 
Kidney stones Esparza v. Pierre Foods, 923 F.Supp.2d 1099 (S.D. Ohio 2013)
Back conditions Molina v. DSI Renal, 840 F. Supp. 2d 984 (W.D. Tex. 2012) 
Vocal cord enema Pearce-Mato v. Shinseki, 2012 WL 2116533 (W.D. Pa. June 11, 2012) 
Multiple Sclerosis Carbaugh v. Unisoft Int’l, 2011 WL 5553724 (S.D. Tex. Nov. 15, 2011)
Hepatitis C Hardin v. Christus Health Southeast Texas St. Elizabeth, 2012 WL 760642 (E.D. Tex. Jan. 6, 2012).

Slide 25:
Case Law:  Episodic Conditions
At least one court has failed to apply the ADAAA’s revised standard. 
Wurzel v. Whirlpool Corp
2010 WL 1495197 (N.D. Ohio Apr. 14, 2010) 
Court concluded an individual’s sporadic angina spasms were not substantially limiting
Stated erroneously: “The principal that intermittent impairments, such as those resulting from plaintiff's sporadic angina spasms, are not deemed disabling remains good law.” 
Note: It appears that this court’s holding is the exception and that most courts are properly applying the ADAAA’s rules of construction regarding episodic conditions.

Slide 26:
Case Law: Conditions in Remission
Courts also consistently find the ADAAA to cover individuals with cancer in remission. 
Hoffman v. Carefirst of Fort Wayne, Inc. 
737 F. Supp. 2d 976 (N.D. Ind. 2010)
Defendant argued no disability because employee’s cancer was in remission and employee had no work restrictions
Defendant “highly doubts that Congress intended all cancer survivors in remission, with no medical evidence of active disease, to be considered disabled as a matter of law for the rest of their lives.” 
Court disagreed, citing the “clear language of the ADAAA” 
Plaintiff need not show that he was substantially limited in a major life activity at the time of the alleged adverse employment action 
Conclusion further bolstered by EEOC guidance listing cancer as an example of an impairment that is episodic or in remission 

Slide 27:
ADAAA: Disregard Ameliorative Effect of Mitigating Measures
Congress passed ADAAA, in part, to respond to Sutton trilogy
ADAAA rules of construction: Requires courts to consider whether an individual has a disability without taking into account the ameliorative effects of mitigating measures (except for ordinary eyeglasses and contact lenses). 42 U.S.C § 12102(4)
Examples: medication, equipment, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics, hearing aids and cochlear implants, mobility devices, use of assistive technology, reasonable accommodations or auxiliary aids or services, and learned behavioral or adaptive neurological modifications. 
EEOC’s regulations added psychotherapy, behavioral therapy, and physical therapy. 29 C.F.R. § 1630.2(j)(5)(v) 

Slide 28:
Case Law:  Disregarding Ameliorative Effects
Courts are applying disregarding ameliorative effects of mitigating measures.
 Orne v. Christie
2013 WL 85171 (E.D. Va. Jan. 7, 2013)
Employee was diagnosed with sleep apnea and began to treat condition with a CPAP machine
Employee previously struggled to stay awake and concentrate at work, but once he started to use the CPAP machine, he no longer experienced these symptoms 
Employer argued that employee did not have a disability because the CPAP machine “cure[d]” or “relieve[d]” the employee
Applying the ADAAA, the court found the employer’s argument without merit and allowed the employee’s claim to go forward

Slide 29:
Case Law: Disregarding Ameliorative Effects
Harty v. City of Sanford
2012 WL 3243282 (M.D. Fla. Aug. 8, 2012)
Plaintiff had restrictions in his ability kneel, squat, run, jump, climb stairs or a ladder, or walk up or down inclines 
During his job as a city foreman, plaintiff found ways to mitigate the impact of his physical restrictions 
When disregarding the ameliorative measures employed by plaintiff, court found that plaintiff had substantial limitations

Slide 30:
ADAAA and Case Law: Negative Effects of Mitigating Measures 
Even though the mitigating measure itself cannot be considered, the negative side effects of mitigating measures may be considered in assessing disability. 29 C.F.R. Part 1630 app. § 1630.2(j)(1)(vi).
Seim v. Three Eagles Communications, 
2011 WL 2149061 (N.D. Iowa June 1, 2011) 
Considering limitations caused by plaintiff’s Graves’ disease, as well as the negative side effects of the medications he took to ameliorate symptoms of this disease, including drowsiness and confusion
  Wells v. Cincinnati Children’s Hosp. Med. Ctr. 
860 F. Supp. 2d 469, (S.D. Ohio 2012)
Found substantial limitation due to medications prescribed to ameliorate plaintiff’s gastrointestinal condition, which in turn caused her to experience blackout, disorientation, and confusion interfering with her work performance as a nurse

Slide 31:
Case Law: Mitigating Measures
Tip for litigants: Plaintiffs still need to demonstrate how their conditions substantially limit a major life activity absent the mitigating measures.
Lloyd v. Housing Authority
857 F.Supp.2d 1252 (M.D. Ala. 2012)
Court recognized that the ADAAA required it to evaluate the plaintiff’s condition in its unmitigated state. Still concluded that plaintiff failed to produce evidence about how his asthma and high blood pressure would affect him if left untreated. 
O’Donnell v. Colonial Intermediate Unit 20
2013 WL 1234813 (E.D. Pa. March 27, 2013)
Court granted defendant’s motion to dismiss because plaintiff failed to identify how his “treated or untreated” mental health disorders were substantially limiting.

Slide 32:
ADAAA: Major Life Activities 
Prior to the ADAAA, there was significant litigation over what constituted a major life activity 
  
ADAAA included a non-exhaustive list of major life activities.
caring for oneself, walking and standing, performing manual tasks, reading, seeing, lifting, hearing, bending, eating, speaking, sleeping, breathing, learning, communicating, concentrating and thinking, and working 
42 U.S.C. § 12102(2)(A)
  
EEOC added: interacting with others, sitting, and reaching 
29 C.F.R. § 1630.2(i)(1)(i)

Slide 33:
Case Law: Major Life Activities
No significant amount of litigation to date on definition of major life activities. 
  
Bar-Meir v. Univ. of Minnesota
2012 WL 2402849 (D. Minn. June 26, 2012) 
Court confirmed that “social interaction” or “interacting with others” was a major life activity under the ADAAA pursuant to EEOC regulations   
Note that court ultimately dismissed case because plaintiff failed to show causation between disability and adverse employment action 

Slide 34:
Case Law: Major Life Activities
Prediction: Unlikely to be major litigation on this issue

Thomas v. Bala Nursing & Retirement Center
2012 WL 2581057 (E.D. Pa. July 3, 2012)
Plaintiff asserted that she was substantially limited in sleeping because her anemia caused her to sleep up to 12 hours
Defendant asserted that limitation should be “characterized as ‘waking up’ instead of ‘sleeping,’ and that sleeping longer than average individual is hardly a substantial limitation in sleeping” 
Court rejected defendant’s argument: it cannot conclude as a matter of law that “waking up” is not a major life activity  

Slide 35:
ADAAA: Major Bodily Functions
Before ADAAA - Some impairments where plaintiffs had difficulty showing they were substantially limited in a traditional major life activity, leading courts to dismiss many cases involving impairments that most thought would be covered by the ADA
Examples: cancer, heart disease and diabetes 
ADAAA - Congress broadened definition of “major life activities” to include the concept of “major bodily functions” 

Slide 36:
ADAAA: Major Bodily Functions
ADAAA – examples of major bodily functions: 
Immune system, neurological, normal cell growth, brain, digestive, respiratory, bowel, circulatory, bladder, endocrine, and reproductive functions, and clarified that this is not an exhaustive list. 42 U.S.C. § 12102(2)(B)

EEOC – additional examples of major bodily functions: 
Special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, musculoskeletal, and individual organ operation. 29 C.F.R. § 1630.2(i)(1)(ii).

Slide 37:
Case Law: Major Bodily Functions
Courts are consistently applying the concept of major bodily functions in numerous cases involving a variety of impairments. 
Successful at significantly broadening ADA’s coverage
Examples:
Type II Diabetes substantially limits the endocrine function Szarawara v. Cnty. of Montgomery, 2013 WL 3230691(E.D. Pa. June 27, 2013)
Cancer substantially limits normal cell growth Haley v. Community Mercy Health Partners, 2013 WL 322493 (S.D. Ohio Jan. 28, 2013)
HIV substantially limits the immune system Horgan v. Simmons, 704 F. Supp. 2d 814, 818-19 (N.D. Ill. 2010)
Heart disease substantially limits circulatory function Chalfont v. U.S. Electrodes, 2010 WL 5341846 (E.D. Pa. Dec. 28, 2010) 

Slide 38:
Case Law: Major Bodily Functions
Additional examples:
IBS substantially limits bowel functions Myles v. University of Pennsylvania Health System, 2011 WL 6150638 (E.D. Pa. Dec. 12, 2011)
Graves’ Disease substantially limits immune, circulatory and endocrine functions Seim v. Three Eagles Commc’ns, Inc., 2011 WL 2149061 (N.D. Iowa June 1, 2011)
Multiple Sclerosis substantially limits normal neurological functions  Feldman v. Law Enforcement Assoc. Corp., 779 F.Supp.2d 472 (E.D.N.C. 2011)
Brain tumor substantially limits brain functions and normal cell growth  Meinelt v. P.F. Chang’s China Bistro, 787 F.Supp.2d 643 (S.D. Tex. 2011)

Slide 39:
Case Law: Major Bodily Functions
Additional examples: 
Spinal stenosis, cervical disc disease, neural foraminal stenosis, and cervical radiculopathy substantially limit operation of the musculoskeletal system  Barlow v. Walgreen Co., 2012 WL 868807 (M.D. Fla. Mar. 14, 2012)
Removal of stomach and other parties of gastrointestinal system substantially limit bowel and digestive bodily functions  Kravtsov v. Town of Greenburgh, 2012 WL 2719663 (S.D.N.Y. July 9, 2012)
Post Traumatic Stress Disorder substantially limits brain function  Franklin v. City of Slidell, 2013 WL 1288405 (E.D. La. Mar. 27, 2013)
Hepatitis C substantially limits the immune system, digestive, bowel and bladder function  Hardin v. Christus Health Se. Texas St. Elizabeth, 2012 WL 760642 (E.D. Tex. Jan. 6, 2012)

Slide 40:
Case Law: Major Bodily Functions
Tip to litigants: Include clear articulation of major life activities/major bodily functions impacted by impairment. 
  
Fierro v. Knight Transportation
2012 WL 4321304 (W.D. Tex. Sept. 18, 2012)
Pro se plaintiff brought an ADA claim and asserted that his cancer rendered him “disabled”  
Relying on pre-ADAAA precedent, court stated that “merely having cancer-which, though, may be an ‘impairment,’” is insufficient to establish a disability  
Court dismissed claim without mentioning that concept of major bodily functions or cancer’s impact on normal cell growth

Slide 41:
EEOC: List of Impairments
EEOC: List of Impairments
EEOC’s regulations include a list of eighteen impairments that should easily be found to substantially limit a major life activity
Impairments: 
Deafness, blindness, mobility impairments requiring wheelchair, intellectual disability, partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, human immunodeficiency virus (HIV) infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder, and schizophrenia
    
29 C.F.R. § 1630.2(j)(3)(iii)

Slide 42:
Case Law: List of Impairments
Courts are generally deferring to this list and finding plaintiffs with listed impairments to be covered without engaging in a detailed analysis. 
  
Franklin v. City of Slidell 
2013 WL 1288405 (E.D. La. Mar. 27, 2013) 
“Considering . . . that the EEOC regulations interpreting the ADA indicate that post-traumatic stress disorder is an impairment that should easily be concluded to substantially limit brain function, the Court finds that Plaintiff has adequately pleaded that he is disabled within the meaning of the ADA.”

Slide 43:
Case Law: List of Impairments 
Angell v. Fairmount Fire Prot. Dist. 
907 F. Supp. 2d 1242 (D. Colo. 2012)
Court avoided a drawn-out analysis and relying on EEOC regulations, found that it “should easily be concluded” that cancer is a disability under the ADA
  
Horgan v. Simmons, 704 F.Supp.2d 814 (N.D. Ill. 2010)
Citing regulatory guidance stating that HIV should easily be concluded to substantially limit the immune system

Szarawara v. County of Montgomery
2013 WL 3230691 (E.D. Pa. June 27, 2013) 
“The EEOC has advised that diabetes “will, as a factual matter, virtually always be found to impose a substantial limitation” on endocrine function” 
Slide 44:
Case Law: List of Impairments
Some courts will not conclude that an individual has a disability without proof that he actually has one of the impairments listed. 
  
Kravits v. Shinseki
2012 WL 604169 (W.D. Pa. Feb. 24, 2012) 
Court noted that post-traumatic while stress disorder will “virtually always” be found to impose a substantial limitation on a major life activity
Plaintiff “identified no evidence” that he lived with PTSD
Note, the plaintiff still survived summary judgment because he successfully established different disabilities

Slide 45:
Case Law: List of Impairments
Parties are spending less time arguing about whether impairments found on the EEOC’s list are ADA qualifying disabilities 
What about impairments not on the list?
Examples: Learning disabilities, arthritis, anxiety, back injuries
Healy v. National Board of Osteopathic Medical Examiners, 870 F.Supp.2d 607 (N.D. Ind. May 3, 2012) (holding that plaintiff’s reading disorder was not to be substantially limiting when compared to the general population.
Projection: Due to ADAAA’s other provisions requiring broad interpretation of the definition of disability, people with disabilities and their advocates can be optimistic that their cases will not be dismissed on definition of disability.  

Slide 46:
ADAAA: Regarded As
Individual only needs to show that he or she was regarded as having an impairment 
No need to show that the impairment substantially limits a major life activity 42 U.S.C. § 12012(3)
EEOC: “Where an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, it is generally unnecessary to proceed under the ‘actual disability’ or ‘record of’ prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.”  29 C.F.R. § 1630.2(g)(3)

Slide 47:
Case Law: Regarded As
Courts are properly applying this new iteration of the “regarded as” prong. 
   
Meinelt v. P.F. Chang’s China Bistro
787 F.Supp.2d 643 (S.D. Tex. 2011)
Employee was terminated three days after disclosing his disability (brain tumor) to his employer
Court held that employer “regarded” employee as having a disability without any discussion of whether employee’s condition substantially limited a major life activity
  
Darcy v. City of New York
2011 WL 841375 (E.D.N.Y. Mar. 8, 2011)
Employee presented sufficient evidence that he was “regarded as” having a disability because his employer commented that he was an “alcoholic” and transferred him to a new position five months later

Slide 48:
Case Law: Regarded As
Courts are finding that whether an individual is regarded as having an impairment is not subject to a functional test. 
   
Saley v. Caney Fork, LLC
886 F. Supp. 2d 837 (M.D. Tenn. 2012) 
Employee with hemochromatosis “may recover under the ‘regarded as’ prong in the absence of visible symptoms, or any symptoms at all”
  
Johnson v. Farmers Insurance Exchange 
2012 WL 95387 (W.D. Okla. Jan. 12, 2012) 
Rejecting defendant’s argument that plaintiff was not regarded as having a disability because her sleep apnea did not substantially limit a major life activity

Slide 49:
Regarded As: Before and After
Wolfe v. Postmaster General
488 F. App'x 465, 467 (11th Cir. 2012)
An individual with ADHD alleged that he endured discrimination both before and after the ADAAA’s effective date
Pre-ADAAA allegations:
Some of employee’s supervisors testified that they believed employee’s limited attention span occasionally affected his ability to stay in his work area
No evidence that supervisors perceived employee’s impairment to foreclose or substantially limit his ability to work in a “broad class of jobs”

Slide 50:
Regarded As: Before and After
Post-ADAAA allegations:
“[A] plaintiff need demonstrate only that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity.” 
Court quickly concluded that the plaintiff “carried his burden of showing that [his employer] regarded him as disabled.” 
Note that the court still granted employer’s motion for summary judgment because employee failed to provide sufficient evidence that he was discriminated against because of his perceived disability

Slide 51:
ADAAA: Regarded As and Reasonable Accommodations
Pre-ADAAA: Unclear whether someone only covered under the regarded as prong was entitled to a reasonable accommodation
 
ADAAA clarified: Individuals that qualify for coverage under the “regarded as” prong are not entitled to a reasonable accommodation under Title I. 42 U.S.C. § 12201(h)

Courts are concluding that employees covered by the ADAAA’s “regarded as” prong no longer may bring a claim for failure to accommodate.

Slide 52:
Case Law: Regarded As and Reasonable Accommodations
Ryan v. Columbus Regional Healthcare System
2012 WL 1230234 (E.D.N.C. Apr. 12, 2012)
Plaintiff worked as an operating room nurse, and had a degenerative joint disease and arthritis in her knee
Plaintiff requested accommodations of limited standing, stooping, kneeling, and crouching
Employer denied requests 
Employee filed suit, alleging that she was regarded as having a disability
Court dismissed claim: The ADAAA does not require employers to accommodate employees who are regarded as disabled

Slide 53:
Case Law: Implications for “Qualified”
Walker v. Venetian Casino Resort, LLC 
2012 WL 4794149 (D. Nev. Oct. 9, 2012)
Employee was injured on the job and subsequently terminated
Defendant argued that server was not qualified
Employee agreed that she was not qualified without a reasonable accommodation, but asserted that she would have been qualified under an accommodated reassignment 
Court: ADAAA does not require employers to accommodate individuals under the “regarded as” prong 
Because employee could not demonstrate that she was qualified absent a reasonable accommodation, she failed to properly allege the elements of her ADA claim 

Slide 54:
ADAAA: Exception for Transitory and Minor
Congress created an exception to the “regarded as” prong for impairments that are both transitory and minor. 
Transitory = Actual or expected duration of six months or less
Minor = No definition
42 U.S.C. § 12102(3)(B)

Slide 55:
Case Law: Transitory and Minor
Courts are correctly exempting impairments that are both transitory and minor. 
  
Davis v. NYC Dept. of Education
2012 WL 139255 (E.D.N.Y. Jan. 18, 2012)
Plaintiff injured back and shoulder in a car accident
Plaintiff alleged that she was regarded as disabled because she was granted a three-month leave of absence 
Court noted that this might imply that her employer regarded her as having a “transitory” impairment
But nothing suggests that her impairments were also minor
Found plaintiff sufficiently pled and let case proceed

Slide 56:
Case Law: Transitory and Minor
Courts found the following conditions to be both transitory and minor:
Flu / H1N1 
Lewis v. Florida Default Law Group, 2011 WL 4527456 (M.D. Fla. 2011) 
Non-episodic anemia lasting one week  
LaPier v. Prince George’s County, Maryland., 2011 WL 4501372 (D. Md. Sept. 27, 2011) 
Note: These decisions appear to be consistent with the plain language of the ADAAA and EEOC regulations

Slide 57:
Case Law: Defendant’s Burden to Show Impairment is Transitory and Minor
Dube v. Texas Health and Human Services Commission 
2011 WL 3902762 (W.D. Tex. Sept. 6, 2011)
Employee terminated for using 11 weeks of leave to undergo treatment for a “serious medical condition”
Alleged that she was regarded as having a disability 
Defendant moved to dismiss, asserting that employee was only temporarily impaired
Court denied motion: Although employee sought 11 weeks of leave, the complaint did not suggest that employee’s impairment was objectively transient 
Also, court found that nothing in the complaint suggested that employee’s disability was objectively “minor” 

Slide 58:
ADAAA: Short-Term Impairments Under “Actual Disability” and “Record of” Prongs
EEOC regulations: Short term impairments can be substantially limiting, and the exception discussed below regarding temporary impairments under the “regarded as” prong does not apply to the other two methods of proving disability.  
29 C.F.R. § 1630.2(j)(1)(ix)
“The effects of an impairment lasting or expecting to last fewer than six months can be substantially limiting within the meaning” of the definition of actual disability and record of disability. 
29 C.F.R. § 1630.2(j)(1)(ix)

Slide 59:
ADAAA: Short-Term Impairments Under “Actual Disability” and “Record of” Prongs
Newman v. Gagan LLC 
2013 WL 1332247 (N.D. Ind. Mar. 28, 2013)
Employee’s workplace injury resulted in a lifting restriction 
Court allowed employee’s claim to proceed, even though the duration of his disability was not completely clear
Citing the EEOC’s regulations, court stated that the “apparently transitory nature of Plaintiff's lifting impairment does not automatically negate the conclusion that he qualified as disabled under the ADAAA standard” 
    
Lewis v. Florida Default Law Grp., P.L. 
2011 WL 4527456 (M.D. Fla. Sept. 16, 2011)
Plaintiff contracted the H1N1 virus and could not perform various major life activities for a period of one to two weeks 
No ADA qualifying disability because plaintiff’s inability to perform functions for this “extremely short duration” is not a substantial limitation

Slide 60:
ADAAA: Short-Term Impairments Under “Actual Disability” and “Record of” Prongs
Green v. DGG Properties Co., Inc. 
2013 WL 395484 (D. Conn. Jan. 31, 2013) 
Pro se plaintiff brought Title III claim against inaccessible hotel 
Plaintiff had mobility impairment and had undergone three surgeries
His complaint qualified such allegations and pled that he used a walker and wheelchair at the time of his visit 
Court interpreted this pleading to imply that the plaintiff’s need for a mobility device was temporary 
Court cited pre-ADAAA cases and concluded that the plaintiff was not covered by the ADAAA because “even under the ADAAA's broadened definition of disability, short term impairments would still not render a person disabled within the meaning of the statute”

Slide 61:
ADAAA: Regulatory Authority  
Congress expressly granted authority to EEOC, Department of Justice, and Department of Transportation to issue regulations interpreting the definition of disability under the ADA. 42 U.S.C. § 12205a
No real dispute in current cases about whether courts should afford deference to agency regulations
Cases are relying on federal agency regulations 
Many cases are citing 42 U.S.C. § 12205a along with federal agency regulations issued by the EEOC
The Department of Justice and the Department of Transportation have not yet issued new regulations under the ADAAA

Slide 62:
Case Law: Regulatory Authority
Kravits v. Shinseki
2012 WL 604169 (W.D. Pa. Feb. 24, 2012)
Court cited the EEOC’s regulations regarding the term “substantially limits” and noted the statutory rule of construction regarding regulatory authority
  
Angell v. Fairmount Fire Protection District
907 F. Supp. 2d 1242, 1250 (D. Colo. 2012)
Court cited the EEOC’s regulations, along with the statutory grant of authority to do so.  “The authority to issue regulations granted to the Equal Employment Opportunity Commission ... under this Act includes the authority to issue regulations implementing the definitions of disability ... consistent with the ADA Amendments Act of 2008.” 42 U.S.C. § 12205a

Slide 63:
Retroactivity of the ADAAA 
At first, a significant number of cases assessed whether the ADAAA applied retroactively to claims that arose before 1/1/09
Courts nearly universally held that the ADAAA should not be applied retroactively
Courts applied the general rule that absent clear congressional intent, statutes are not applied retroactively because it is unfair to hold a defendant liable for a standard articulated after it engaged in the alleged conduct
EEOC also opined that the ADAAA does not apply retroactively in its Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

Slide 64:
Case Law: Retroactivity of the ADAAA
At least one court applied the ADAAA retroactively, when the plaintiff sought prospective injunctive relief.

Jenkins v. National Board of Medical Examiners
2009 WL 331638 (6th Cir. Feb. 11, 2009)
Sixth Circuit reversed the district court’s decision that held that the plaintiff did not have an ADA-qualifying disability. 
Applied ADAAA because the plaintiff sought “the right to receive an accommodation on a test that will occur in the future, well after [the ADAAA’s] effective date.”

Slide 65:
Case Law: Retroactivity of the ADAAA
Although courts declined to apply the ADAAA retroactively, many still noted the new law or used it to bolster their holding. 

Rohr v. Salt River Project Agric. Improv. and Power District
555 F.3d 850, 862 (9th Cir. 2009)
“While we decide this case under the ADA, and not the ADAAA, the original congressional intent as expressed in the amendment bolsters our conclusions.”

Slide 66:
Want to Learn More?
National Council on Disability, A Promising Start: Preliminary Analysis of Court Decisions Under the ADA Amendments Act, July 23, 2013 
www.ncd.gov/rawmedia_repository/7518fc55_8393_4e76_97e4_0a72fe9e95fb
An Empirical Analysis of Case Outcomes Under the ADA Amendments Act, Stephen F. Befort, University of Minnesota Law School, August 23, 2013
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2314628_code702020.pdf?abstractid=2314628&mirid=1
Exactly What Congress Intended? Kevin M. Barry, Quinnipiac University - School of Law, January 11, 2013
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2240043

Slide 67:
General ADA Resources
National Network of ADA Centers: www.adata.org;  800/949 –4232(V/TTY)
Equal Employment Opportunity Commission: www.eeoc.gov 
Job Accommodation Network: http://askjan.org
U.S. Department of Justice, ADA Info: www.ada.gov
Equip For Equality: www.equipforequality.org; 800/537-2632 (Voice); 800/610-2779 (TTY)

Slide 68:
Conclusion
Courts are generally complying with Congress’s statutory directives and broadly interpreting the definition of disability
There are a handful of cases where courts do not correctly apply the ADAAA, but these appear to be the exception and not the rule
It appears that the ADAAA has effectively broadened protections for people with disabilities
The ADAAA has successfully focused judicial analysis away from whether an individual has a disability, and toward whether discrimination occurred

Slide 69:
Continuing Legal Education Credit for Illinois Attorneys
This session is eligible for 1.5 hours of continuing legal education credit for Illinois attorneys.
Illinois attorneys interested in obtaining continuing legal education credit should contact Barry Taylor at: barryt@equipforequality.org

Slide 70:
Session Evaluation
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