Sure just before we start today as we are getting to the top of the hour I am going to ahead and test the sound again. We have total of three of us that will be speaking today so I will ask Alan and Barry to also test for a second to make sure everybody is okay sound so this is my test and it sounds like people are getting it okay but Alan and Barry why don''t you guys both try just once here before we start to make sure everybody is okay with your sound.
Hi, It is Barry, test, test. Can you hear me?
And hi this is Alan. Test, test making sure everyone can hear me.
Okay, I have adjusted my microphone. Is that any better, Robin?
Still have some static but it is better, it was better than it was. Let me see if the Captioner was saying you were -- she was having difficulty hearing you so let me see if that is any better from her as well.
Testing once again. Any static? Better?
Nah, we are still getting some feedback from you Barry, but you are coming through okay. If you can talk as close to your microphone as possible, that would be great cause you are a little bit soft, you are definitely softer than Alan is, but I am going to go ahead and get us started today. We will move forward hopefully and if anyone does have difficulties please just let us know that you are having problems and the speakers and myself will be monitoring it through the chat area to make sure everyone is okay, Welcome, everyone to the 4th in our series of Legal webinars the majority of which are dealing with employment issues although our next months session will deviate a little bit from that. My name is Robin Jones and I am the Director of the DBTAC Great Lakes ADA Center, this program is being brought to you as one of the programs offered by the Regional Network of ADA centers which are federally funded Technical Assistance Centers on the Americans with Disabilities Act across the United States. I want to welcome you that are joining us from all parts of the country whether this be your morning or your afternoon, I hope that this session is -- you find the session to be valuable for you. I am going to first start out by letting you know that the session is being recorded, there will an archive of this session that will be available on the www.ada-audio.org website. In addition you will receive at the conclusion of this program a copy of the power point slides being used by our presenters. As well as a legal brief that covers many of the cases that they will be discussing and talking about under this particular issue in their presentation today. So, look for those at the conclusion of the session. They will be e-mailed to you using the e-mail address that you registered under. At this time I am going to go ahead and I will introduce our speakers and then I will turn over the program to them. Today we are joined once again by Barry Taylor and Alan Goldstein, both attorneys with the organization known as Equip for Equality which is the Protection and Advocacy Center serving the state of Illinois. I am not going to go through the long bios of each of our speakers but I would refer all of you to our ada-audio.org website where if you follow the links to the legal webinar series you will find extensive bios on both Alan and Barry. Barry is the lead Advocacy Director for Equip for Equality and Alan Goldstein is the senior attorney with Equip for Equality. Barry has been with Equip since 1996 and he provides a number of different programs and services, primarily overseeing the legal services self-advocacy and training programs offered by Equip for Equality he has been involved in many individuals and systemic disability discrimination cases including successful ADA suits as well as other areas of law protecting people with disabilities. He has also served as Chairperson of the Disabilities Rights Consortium, he is Chairperson of Season of Concern through the Chicago AIDS Fundraising Organization, Chairperson of Legal Committee for the National Association of Protection and Advocacy Systems, as well as many other positions which you can see. He also is an adjunct professor at John Martial Law School which is located in Chicago. Prior to joining Equip for Equality he was a attorney in the area of the AIDS project for the Midwest Regional Office of Lambda Legal Defense and Education Fund, primarily working on issues affecting people with HIV and AIDS. He also has done work in the private sector with the firm known as Peterson and Ross. He has graduated from the University of Illinois with his legal degree. Alan is an attorney with Equip for Equality for a number of years as well. He is involved in a number of aspects with Equip for Equality and involved in a number of different issues related to the Americans with Disabilities Act as well as other areas of law affecting people with disabilities. He is one of the primary trainers working with businesses, legal community and such, to increase their knowledge and awareness related to the Americans with Disabilities Act. He works also as a collaborator or coordinator for the Centers affiliate in the state of Illinois known as the Illinois ADA project. He also collaborates with the Chamber of Commerce in the city of Chicago through their Disability Works Program, providing trainers to business through the Business Leadership Network that is offered and run by the Chamber of Commerce in the city of Chicago. Barry has extensive experience in working with the ADA in providing training on a variety of different topics. So again, I will go ahead and turn over our session today which is focusing on the issues of major life activity under the ADA and stressing how this will change after the ADA Amendments Act. For those of you joined us earlier in the year, that we did have a webinar on the newly-enacted ADA Amendments Act. If you were not able to join us, I would refer you back to our archives to listen to that session and again that can be found at www.ada-audio.org and you will see the list of archived sessions for this particular past year and you can listen to them as well as see the power point presentations and handouts associated with that. So at this time, I am going to go ahead and turn it over to both Barry and Alan for the meat of this session. Go ahead, Alan and Barry.
Okay, thank you, Robin. This is Alan talking. And just in case those introductions weren''t enough, you can visit our Facebook pages for more info on our - no I am sorry, I am kidding, I don''t think we have Facebook pages. Anyway here is the outline of what we will talk about today and welcome everyone for joining us. First we are going to talk about major life activities under the Americans with Disabilities Act as originally written and passed in 1990 and then part 2 we will talk about major life activities under the or after the passage of the ADA Amendments Act which was passed in September of ''08 and became effective January 1st of ''09 the beginning of this year and then I am going to turn it over to Barry for part 2 and Barry is going to go through an analysis of specific major life activities and then also examine the issue of whether the ADA Amendments Act would apply retroactively to issues arising before January 1 of 2009. Under the original ADA, the definition of an actual disability was a physical or mental impairment that substantially limits one or more major life activities. As originally written major life activities, that term, was not defined anywhere in the text of the ADA nor were there any examples of major life activities contained in the text of the ADA and this is what led to some problems because what happened is the EEOC, the Equal Employment Opportunity Commission, issued regulations and they were charged under the ADA to issue regulations related to the employment provisions and in addition to that the EEOC issued regulations defining major life activities and other regulations pointing to the definition of disability. And the EEOC defined major life activities in their regulations as basic activities that the average person can perform with little or no difficulty and they included some examples of major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The EEOC made it clear that the list of major life activities is only meant to be illustrative, it is not an exhaustive list, and people with disabilities and advocates can assert something as a major life activity which is not listed in the EEOC regulations. In addition to what the EEOC put in the regulations, the EEOC also identified some major life activities in the appendix which included sitting, standing, lifting and reaching. The EEOC further to make it a little more complicated, the EEOC issues a lot of different materials, they issue regulations which are probably have the largest force behind them and are, should be given the greatest amount of deference, the EEOC also issues guidance which is not as forceful as a regulations. The EEOC provides compliance manuals for employers, they also do advisory opinions in the EEOC also handles cases. And through all those avenues the EEOC can occasionally identify components of the law on major life activities. In the compliance manual the EEOC expanded on the list of major life activities and also included thinking, concentrating and interacting with others and then in the guidance recently issued a year or two ago on psychiatric disabilities and the ADA, the EOCC added sleeping as well as to one of the major life activities that it identified. The issue arises how much deference should be given to EEOC interpretations or guidance. And in the Sutton case the Supreme Court refused to defer to the EEOC regulations on the definition of disability. The Supreme Court specifically found that Congress gave the EEOC authority to interpret or issue regulations on the employment provisions of the ADA but the definition of disability was not included in that charge and was in a separate part of the ADA so therefore the Supreme Court did not give deference to the EEOC regulations on the definition of disability. As a result, after Sutton, courts generally took a very narrow view of what is considered a disability under the ADA which led to confusion and inconsistent rulings across the country. As many of you know, every ADA case requires an individualized assessment but that got a little far extreme because people with very similar conditions, one person in one part of the country would be covered by the ADA and a different court would find that a person with very similar limitations would not be covered by the ADA so there was inconsistency across the country in determining by courts who was protected under the Americans with Disabilities Act. For this and some other reasons, Congress, within less than 20 years of passing the ADA, wrote and passed the ADA Amendments Act, and the ADA Amendments Act was specifically passed, one, to invalidate the Supreme Court decisions which are the Sutton decision and the Toyota decision that incorrectly narrowed the definition of disability. Oh I am sorry there is a correction, the psychiatric issue guidance was issued in 1997 I think I was thinking of another guidance issued recently, thanks for correcting me on that Barry. The Psychiatric guidance was actually issued earlier than a couple years ago, I misspoke on that. The ADA Amendments Act was also intended to restore ADA protection for the individuals who Congress intended to protect. Congress said that many people that it intended to pass or to protect when it passed the ADA were not protected under court decisions post Sutton so that is why Congress passed the ADA Amendments Act to improve that situation to make sure people who it had intended to cover and protect with the ADA were protected by the ADA and Congress also sought to make it clear the focus on ADA cases should be on whether a covered entity met its ADA obligations. The focus should not involve an extensive analysis on the definition of disability. As in other civil rights cases Congress is saying that it wants the focus to be on whether discrimination occurred or it didnt but as we have seen in the ADA cases the real focus was on the person who claimed discrimination was under a medical condition to see whether they met the standard of being protected by the ADA. Although there was a little bit of back-and-forth in the end, the ADA Amendments Act used the exact same definition of disability that the ADA used in 1990 which is the same definition of disability that was used in the rehabilitation act of 1973 and that is a physical or mental impairment that substantially limits one or more major life activities. That language did not change, however how that language is interpreted and constructed will change under the ADA Amendments Act. To make that clear, Congress explicitly stated or states in the ADA Amendments Act the definition of disability should be construed in favor of broad coverage to the maximum extent permitted by the terms of this act. In addition, due to the problems that arose before because the original ADA did not contain any examples of major life activities and because the courts did not give deference to the EEOC interpretations and regulations on this issue, Congress added to the text of the ADA amendment act specific examples of major life activities, again making it clear that this list is illustrative, it is not a complete list, and it can be increased. The goal of adding this was to avoid the previous problems of the courts ignoring regulations and which led to inconsistent rulings by various courts around the country. And, generally Congress listed major life activities that were previously identified by the EEOC and added a few more that were seen either in cases or guidance or regulations. When we see here in slide 11, a non-exhaustive list of major life activities which includes the ones we spoke about before, caring for one self, performing manual tasks, seeing, hearing, eating, sleeping, learning, concentrating and thinking, walking and standing, reading, lifting, bending, speaking, breathing, communicating and working. And, this list contained three activities previously not recognized by the EEOC, and those three are noted in the bottom of the slide: reading, bending and communicating. Previously the EEOC had used speaking and then now uses communicating, a much broader term, and should be more effective. In addition, Congress added a second category of major life activities which includes the operation of major bodily functions. This was not included previously in the definition in the regulations of major life activities although they were alluded to at some point but the major bodily functions now included in the text of the ADA Amendment Act include functions of the immune system, normal cell growth, digestive, bowel, bladder functions, reproductive functions, neurological, brain, respiratory, circulatory and endocrine functions. So Congress added this whole new category of major life activities which should make it somewhat easier for plaintiffs to show they are protected by the ADA. For example, an individual with HIV AIDS would not need to show they are limited in their reproductive function of major life activity of reproduction, they can just show they are limited in the major bodily function of how their immune system operates. People with cancer can again not have to search is it walking, is it sleeping, is it eating, they can say we are limited in a major bodily function of normal cell growth. Likewise, the digestive function will be effective for people with Crohn''s or celiac disease, people with ulcerative colitis can talk about limitations in the major bodily functions of bowel movements, bladder functions are included which will cover people with kidney disease, reproductive functions, again is listed as a major bodily function can cover infertility, in addition, people with multiple sclerosis or epilepsy can now claim they are limited in the major bodily function of the neurological processes, people with developmental disabilities such as schizophrenia can talk about limitations of brain functions, likewise, respiratory functions for people with asthma, circulatory functions for people with heart disease or high blood pressure or other circulatory issues and people with diabetes who are often left unprotected under the old ADA can now point to limitations in the endocrine system to show they are indeed substantially limited in a major life activity. EEOC regulations are forthcoming, we don''t know when. There have been discussions but they are not completed and I think those regulations will provide more clarity in terms of both the major bodily functions and major life activities in general. In addition the EEOC was charged to redefine how substantially limits is interpreted because once we look at the major life activities the next step is to see if that major life activity is indeed substantially limited by the impairment. The ADA Amendments Act also clarified that only one major life activity needs to be impacted for a person to be protected by the ADA and it clarifies that as long as a person is substantially limited in one major life activity then they are protected by the ADA. It does not have to be more than one major life activity. The ADA Amendments Act also broadened coverage for people under the ADA''s regarded as prong of the definition of disability and it clarifies that regarded as applies whether or not the impairment limits or is perceived to limit a major life activity. Under the old ADA, the burden was on the person alleging discrimination if they did not have an actual disability to show that the employer regarded them as having a substantial limitation of a major life activity and to show that the employer regarded that a person had a substantial limitation it was very difficult because you''re trying to show what''s in the mind of another person. Now under the ADA Amendments Act you do not have to show that the employer regarded you as being substantially limited, just that they regarded you as having an impairment. And it also provided clarification in which I believe benefits both the business community and people with disabilities and it says that the regarded as prong does not apply to impairments that are transitory and minor within actual or expected duration of six months or less. The ADA Amendments Act specifically gives regulatory authority to the EEOC for Title I of the ADA, the Department of Justice for Title II and Title III of the ADA and the Department of Transportation for the transportation provisions under the ADA and it gives those agencies explicit authority to issue regulations interpreting the definition of disability under the ADA. As we recall in the Sutton case the Supreme Court found that the EEOC did not have the specific authority to interpret the definition of disability, just the employment provisions in general. Now that has changed under the Amendments Act and the Sutton holding which allowed the Supreme Court and Federal Courts to ignore regulations on the definition of disability are repudiated by the ADA Amendments Act. And as I mentioned earlier the EEOC was directed to issue new regulations including a redefinition of the term "Substantial limitation." In terms of specific, oh I am sorry, I am jumping into Barry''s part, at this point, I don''t know if we want to turn it over for questions for a few minutes but I am going to turn it over to Barry.
Okay, while we are waiting for Barry to come online here, for the next portion/section, just wanted to see whether or not anyone did have any questions for Allen at this point in time related to his discussion of the issues of ADA Amendments Act and how the definition of disability has been modified or changing in light of what is a major life activity and the conditions and such that will now be looked at or be covered. Does anyone have any questions at this time before we have Barry take over? You can type them in the chat box or you can indicate that you would like to speak. If not, I will go ahead and turn it over for Barry at this time.
Okay we seem have some technical difficulties and unable to get Barry on here. I am not sure, Alan, if you are working with Barry on getting him online here at all. Okay folks, we apologize, we are waiting to see what is happening here with Barry. One of the technical issues of using these kinds of systems is we sometimes have technical problems. So lets see, Barry is going to switch over to Alan''s office, he is having trouble, difficulty with his microphone and since we know that Alan''s was working, we will hopefully that work okay. Luckily, they both work in the same building so that they can easily switch between offices, so we apologize and so just bear with us here for a minute as they switch between microphones. And again, if you have any questions, for those of you that again did not or were not able to join us for the session on the ADA Amendments Act where we were joined by Sharon from the Equal Employment Opportunity Commission, you can access that program through our archives at www.ada-audio.org and we do have a legal brief that discusses this particular issue as well and the ADA Amendments Act went into effect on January 1 of 2009 and we are still waiting for the Equal Employment Opportunity Commission to come forward with their regulatory guidance on this particular area but we are starting to see the courts begin to apply and utilize the act, even in the absence of that regulatory guidance. So let''s see if Barry is available and ready to start.
Hi. Can you hear me now?
Yes, go ahead.
Great. So this is Barry, it says Alan but it is Barry and I apologize for the technical issues, I am not sure what happened. It was working a few minutes ago, but in any event, let''s move forward now. What I am going to be focusing on is some specific major life activities under the ADA and how they might be impacted by the ADA Amendments Act. Now, if you are familiar with litigation that has been done previously under the ADA there was quite a bit of litigation that was done with respect to, with respect to what is a substantial limitation. But as Alan was talking about before, before you can do that, you have to show that you have a major life activity because it''s substantially limited in a major life activity and there was some litigation about what constitutes a major life activity so and that is really one of the major components that has changed as a result of the ADA Amendments Act. So I think it will be helpful to go through some of this to see what has changed as a result of the new provisions under the ADA Amendments Act. And so what we are going to do is focus on those major life activities that will most likely be impacted by the ADA Amendments Act, of course over the years there have been many, many different major life activities that have been raised by plaintiffs in cases but we are going to focus on those we think will have the most potential change as a result of the ADA Amendments Act. I also wanted to mention that this power point and we have also created a legal brief that goes into more extensive analysis of this, both of those documents will be available for you after this webinar and I will be referring to cases and rather than you quickly writing down all the citations and everything, they will all be listed in your legal brief that you will be receiving so what we will be doing today is giving you the overview and then you can really delve into the details of some of these cases and citations and such once you receive the legal brief. The other thing I just wanted to mention at the outset is that Alan alluded to the fact that major life -- bodily functions is now a component of major life activities and I think what we are going to be seeing in a lot of these cases as Alan had referenced is that that is going to be maybe the major preferred avenue for people to follow because it is an easier proof kind of thing than it would be for other types of disabilities. So for instance, if somebody has diabetes, they may decide to go on the path of the major bodily function of the endocrine system being substantially limited as opposed to a more concrete major activity like eating that has had more mixed results and we will talk about that in a second. But I can''t I guess overemphasize what I think the changes have made with respect to proof of some disabilities that really had a hard time fitting into the construct of the definition of disability under the previous case law that this Act really says, look, what we have had before is a lot of folks with impairments that Congress had wanted to protect and provide disability discrimination protection for like heart disease and diabetes and kidney disease and those disabilities under the case law that has been decided since the ADA went into effect haven''t really served those folks well and as a result a lot of those folks have not been able to pursue their cases so this adding of this major bodily functions I think is really a direct way to address that and we will have tips on which path might make sense and again I know we have both employers as well as people who are focusing on employee issues but I think these, what we are really seeing from the ADA Amendments Act is some clarity, that I think both employers and employees were desperately seeking because what we have when the ADA was passed was supposed to be a national law to provide a national standard. Before the ADA was passed you really had to rely upon which state you were as to determine what type of disability discrimination protection was available or that you were responsible for as an employer. When the ADA was passed it was trying to provide this national standard and that really did not come about because the courts were really all over the place, I think one of the reasons they were all over the place is as that Allan alluded to, the EEOC''s guidance which provided concrete information for employees and employers was not given any deference or given any weight by the Supreme Court. Because Justice O''Connor in the Sutton case found that because Congress had not specifically given that delegation to the EEOC to look at the definition of disability and she believed had only given the EEOC the ability to interpret Title I, then they weren''t going to defer to all the different information available from the EEOC and clearly Congress did not intend that and they made that clear when they passed the ADA Amendments Act and so now all this work that the EEOC did to try to provide some guidance to employers, and to employees, and to provide this national standard, I think we are much closer than we were before. Now there is certainly going to be litigation over some of the things that don''t fall neatly within any of the activities or bodily functions that are listed but I think we have got a lot more certainty now than we had before and again I think that is good for both employers and employees. If you remember from our talk on the ADA Amendments Act earlier this year we talked about how it wasn''t just the disability advocates pushing for this, the Chamber of Commerce and lot of business organizations were also at the table working on this to find a fair solution to try to provide some more certainty and clarity for all parties involved. So now let''s move to some specific major life activities. And the first one we have here is bending. And you might remember Alan listed those activities that were listed in the EEOC''s regulation and subsequent guidances and that sort of thing. Bending was never listed in the EEOCs regulations so if you remember he had a slide that showed there were three new major life activities that were listed in the ADA Amendments Act had not been referenced by the EEOC, and bending is one of those. And so this is really an area that I think again is going to provide a little bit more certainty to both sides because it is one that the case law was sort of all over the place, you see the Parkinson case that is referenced here. That was a gentleman whose employee who had sought an accommodation. He had heart disease and he argued he was substantially limited in the major life activity of bending and the court was skeptical over whether bending was, as they put in quotes, major enough to be a major life activity. And so he wasn''t able to pursue his claim. But now we have the ADA Amendments Act and it is clear that bending is one of the major life activities. So no longer are we going to have litigation on whether bending is a major life activity. Congress has said so specifically in the statute so that sort of, there is no debate on this anymore because it is in the statute. The reason there was such debate before was it was never in the statute. It was only in the regulations and some courts didn''t even look at the regulations and as I mentioned before, bending wasn''t listed in this regulation before anyway so this is really going to I think create more certainty for folks as far as whether bending is a major life activity and clearly here it is. One of the things that when we talked about major bodily functions you might have noticed is there wasn''t a majorly body function that went to musculoskeletal systems and those are the systems that would affect a lot of activities that are consistent with bending so people who have back impairments, which is one of a significant component of the charges that are filed with the EEOC and my understanding is that in some of the negotiations back and forth when they were looking at these different major bodily functions the back impairment was one that really concerned a lot of employers because of the difficulty in proving what, you know whether a person has a back impairment and sort of the proliferation of back claims and so we don''t see anything about musculoskeletal or orthopedic in the major bodily functions. So if people those types of disabilities they are either going to have to find a different type of bodily function or one of the more traditional major life activities like bending so that will be an area I think to watch, and again we won''t be debating whether bending is a major life activity, what we will be debating or the courts will be litigating is whether there is a substantial limitation or not. So, the next one we want to talk about is reading as a major life activity. And, reading like bending was not listed in the EEOCs regulations. But even though it wasn''t listed in the EEOCs regulations, most courts did agree that reading was a major life activity so unlike bending where there was a lot more uncertainty, reading was one that most courts had supported in finding those major life activities, you will see the reference to the head case -- Head versus Glacier Northwest is a case involving a gentleman with mental illness and he had raised reading as one of the variety of major life activities. And the court said that what the defendant had said here was that major life activities to be major has to be central to the survival of the person sort of like breathing and the courts said you know major doesn''t go that far, it doesn''t have to be essential to survival. The other thing that was important in this case is that you will remember when we were talking about substantial limitation it doesn''t mean you are unable to read. It means that you are limited in your ability to read. So this was a person with mental illness who knew how to read but had a really hard time focusing for a period of time and so he couldn''t read more than a couple minutes at a time. So that was his substantial limitation in reading. So just a reminder that when we are talking about a substantial limitation in a major life activities, it doesn''t have to be that you can''t do the activity at all but there is a limitation that is substantial. So now we have the ADA Amendments Act and as Alan alluded to, this is one of the new ones listed as a major life activity. Then you see here is a tip, the addition of reading may benefit people with learning disabilities. Major life activity of learning is one that has been recognized for quite a while but it has been difficult for many plaintiffs to be successful with, particularly people who have learning disabilities and achieve well in school and are in education, so for instance there are a lot of cases out there involving people who are seeking accommodations on testing because of their learning disabilities, seeking additional time or maybe a distraction-free room or something like that. And some of the courts have been skeptical that the person is substantially limited in learning because the person has achieved what they have despite their impairment or their learning disability. They have gotten decent grades so they have said well you have done okay, you dont need this accommodation and so the major life activity of learning has been really challenging for some people to fall under who have learning disabilities. If you have a learning disability, learning seem to be the obvious one you would choose but I think now with the addition of reading, there are I think it is easier for a plaintiff to prove that they were substantially limited in reading because there are tests that you can take that show the inability to read clearly the first time through and comprehend it and people with learning disabilities often have to read over and over and over in order to get the meaning so I think a tip for employees or people who are bringing cases under the Americans with Disabilities Act who have learning disabilities may want to raise reading as a major life activity as well as learning. Lets go to the next slide. Communicating is another one I think that raises some new issues for us. This is the third one that was not listed by the EEOC in its regulations. But it is been added in the ADA Amendments Act. So now we have speaking and communicating listed there and these are cases where the plaintiff isnt really limited in speaking, it is not like they are unable to speak or they have difficulties in getting a sound out, so perhaps people who have disabilities that are more physical than getting sound out would be substantially limited in the major life activity of speaking but communicating is broader and the Sevigny case that you see there from Maine is the case involving somebody with mental illness and attention deficit disorder so clearly they could form sound because they could speak but they were alleging they were substantially limited in the major life activity of communicating because they were having a hard time communicating with people because of the mental illness and focusing on them because of the ADD. They were not good at engaging in communication in a one-to-one basis. That was very difficult for them. I think by adding the communicating to the ADA Amendments Act list of major life activities what you have done is expanded or clarified who could be covered and no longer do you have to sort of stretch speaking to encompass what really is more of a communication issue because now communication is clearly listed here as a major life activity. Concentrating. This was one that has been listed in some of the information from the EEOC but the courts have been pretty split on concentrating as a major life activity. A lot of the cases that you see say that, well concentrating doesn''t seem major enough, it really seems to be a component or subset of other major life activities like thinking or there is a case that will be in the brief called the Pac case, Pac versus K-Mart from the 10th circuit, and in that case the person alleged that they were substantially limited in concentrating and the court said you know concentrating is not a major life activity by itself, it is significant but its really more of a necessary component of other activities like working or learning or speaking. But by itself it isnt. And so what you had again was some real inconsistency across the country as to what is considered a major life activity. And again, I think the Congress here has really helped both employers and employees know whether or not something is a major life activity or not. And so, if you go back to the original list that Alan showed you earlier you will see thinking and concentrating together listed as a major life activity. So no longer will we be saying well is concentrating by itself or do you have to add thinking, you know different courts were going all over the different paths there. Now it is clear concentrating is a major life activity. What is going to happen now is we are going to see the issue is more about whether there is substantial limitation and one thing we may want to consider Robin in next year''s webinars is maybe focusing a session on substantial limitation especially after we have some more cases under the ADA Amendments Act because I think that is really where we are going to see more of the litigation as opposed to whether something is a major life activity given that we have now such clear list in the statute itself. One tip here is again you may want to look at a major bodily function rather than just solely relying upon concentrating. So people with intellectual disabilities, learning disabilities and potentially some mental illness may want to use the major life activity or the bodily function of brain activity which is now listed as one of those major bodily functions. I think the mental illness one is the trickiest one because the science I think is still evolving as to where certain illness coming and tying it to the brain and that sort of thing. I think it is clear on things like schizophrenia but other aspects of mental illness may not be as clear. But I think one thing Congress seemed to be really clear on was even though it is, some of these may be challenging in trying to fit some of these things with certain bodily functions, Congress really still didn''t want to spend a lot of time figuring it out whether somebody is covered by the law or not, they really wanted to focus on whether employers are meeting their responsibilities under the law and not spend this inordinate amount of time on whether somebody has a disability or not. So, even though I am saying that this is something people are going to be analyzing, there is sort of an overlay from the courts or excuse me from Congress''s purposes and reasons why they passed this law that are stated explicitly in the ADA Amendments Act that we shouldn''t be spending as much time in these court cases analyzing this issue. I am giving you a framework for this but also reminding you that the courts or the Congress is instructing the courts not to spend an inordinate amount of time and the definition of disability shall be construed in the favor of broad coverage to the maximum extent allowed under the Act. So courts should have sort of an emphasis on trying to find coverage for people with disabilities and that really is consistent with all the civil rights laws that have been passed previously. There are tons of court decisions that these civil rights laws should be interpreted liberally. And to effectuate the important purpose and the ADA is really the only civil rights law that sort of took a very different path with the Sutton and Williams cases that Alan talked about and really narrowed the definition and said it should be a strict standard or demanding standard. It is really different than other civil rights laws and I think the ADA Amendments Act, in addition to some of the specifics they are giving us, is reminding the courts that this is a civil rights law and the goal is to try to eradicate disability discrimination and give some guidance to employers and employees what the parameters are for that protection but that protection should really be the primary component. Lifting. Lifting is very similar to concentrating in that the Courts were all over the place on lifting and I think it is partially because lifting is again a lot of courts said that is not really not a major, it is a subset of other things like working. There is a case in your brief, the Jacoby, from Pennsylvania, where you have the plaintiff had a knee ailment and he was in charge of various safety at a chemical plant and he had to do some lifting and crawling and he then had to have a knee replacement surgery and as a result he was ultimately deemed not qualified to continue working there. And he had claimed that he was substantially limited in the major life activity of lifting, as well as some other things. And the courts said you know that is just not a major life activity. It is a subset of working, it is not by itself a major life activity. But on the other hand there are numerous other cases where lifting was major life activity so again we had very inconsistent interpretations across the country in cases that had very similar facts. So, it almost was a return back to when we were dependent on state laws before the ADA that where you lived really determined whether or not certain things were major life activities or not, which circuit you were in, which state you were in would determine whether or not you had protection or not, and certainly that is contrary to Congress''s intent to provide a national standard. So again, now that lifting is listed in the ADA Amendments Act, there isnt going to be litigation on whether that is a major life activity because it is in the text of the law. And the courts can''t ignore it if it is in the text. Again what we will see is more cases focusing on whether it is a substantial limitation on lifting and again courts should be trying to construe the act in favor of broad coverage. I think lifting is very similar to bending that we talked about in that this is another activity that I think people with back impairments are going to be looking to because they don''t necessarily have an easy fit for the major bodily functions that we listed before because musculoskeletal or orthopedic aren''t listed as a major bodily function at this point. Sleeping. Sleeping is another really challenging one before the ADA Amendments Act because the courts were really all over the place. It wasn''t originally listed in the original EEOC regulations but it was identified in the EEOC guidance on psychiatric disabilities in 1997. So I don''t know if folks were working on ADA issues at the time but when that guidance came out it was pretty controversial because you had the EEOC saying that sleeping was major and you had employers saying what do you mean sleeping is a major life activity in employment cases? People aren''t supposed to be sleeping on the job. That is not something we are paying people to do. We are paying people to lift and we are paying people to work and paying people to concentrate and think, but we are not paying people to sleep. So a lot of employers were confused because they thought that you had to show the major life activity actually related to a work-related activity in a Title I case. The courts actually have been very consistent on this, rejecting that there has to be a connection between employment and the major life activity and I think Congress is making that even more clear by listing some things that aren''t part of the workplace like sleeping. So sleeping is now clear that sleeping is a major life activity, I think we are also clear that the major life activity doesn''t have to relate to work. What has to relate to work is the essential job functions, not the major life activity. You get covered, you get determined whether you are covered by the ADA and then you move to the job and you move to the major life activity, excuse me the essential functions and whether somebody is qualified and whether they need accommodations. But for determining whether you have a disability you don''t have to relate it to work. And I think that is inherently clear now by the ADA Amendments Act. It was implicit before but I think it is very clear now. And really what we are going to see again, is the cases turning on whether or not the person is substantially limited in sleeping and while this webinar is not really focusing on substantial limitation it is hard to separate that from major life activity. Previously the courts took a really narrow view, you have cases, there is a case in your brief, the Browne versus Principi case from New York where somebody had fibromyalgia syndrome and they had difficulty sleeping and the court found that they were not substantially limited in the major life activity of sleeping because they had only given sort of vague assertions as to how they were limited in sleeping. And there is other cases that are listed in the brief that they say it has to be severe, and even one case that I think it is pretty extreme that said even if you are because of your disability only sleeping two to four hours, that is not enough to be a substantial limitation of a major life activity, it is just an inconvenience, now I think that case is sort of on the out and more sort of the majority of the cases were saying okay if you are sleeping less than five or 6 then you are substantially limited in sleeping. Not very many went down to under two hours a night. But in any event, I think we are going to be seeing this come up, especially in cases again involving people with mental illness that is one of the more common disabilities that use sleeping and again people with mental illness may want to look at some of the major bodily functions as an alternative to sleeping, such as the brain functioning. And when I say alternative, that when you bring a case under the ADA you don''t have to pick just one major life activity. You can pick a variety and then you only have to prove that one of them is a substantial limitation, so those of you who are bringing cases or defending it, it is important to understand that you can allege a variety of major life activities as long as you have a factual basis to support that type of thing. Then I think like I said it should be easier to prove under the ADA Amendments Act rules of construction as far as trying to construe in favor of broad coverage. Courts should be taking more of an expansive view of what a substantial limitation is than they were before, because the courts before were relying on Sutton and Williams, which told them to take a more narrow view. Now we get to eating as a major life activity and this is one that is really been before the ADA Amendments Act was starting to evolve and we really didn''t see a lot of eating cases as a major life activity and the initial years of litigation under the ADA but after we moved into the turn of the century we started to see more of these coming up and while the EEOC didn''t have eating in its major life -- listed as a major life activity in its initial regulations they subsequently did identify eating in its instructions to their field officers that they put out after the Sutton case. So after the Sutton case they needed to put out instructions to say, ok, now that we have the Supreme Court decision in Sutton, as EEOC moderators you have to modify how you interpret things and there was a real concern at the time among people who used mitigating measures like people who use insulin for diabetes that the Sutton case was going to eliminate them from being covered under the ADA, and so the EEOC I think tried in the wake of Sutton to find ways for people who use mitigating measures to be covered and so that is when they identified eating as a major life activity and they hadnt before, but I think it really was in response to Sutton and the mitigating measures issue causing difficulties for variety of people including people with diabetes. So, before the ADA Amendments Act you saw a number of cases being brought involving eating as a major life activity for people with diabetes, and there is a case that will be in your brief, the Jesse case, that talks about eating as a major life activity but it has to be eating, it has to be a life-sustaining activity, not just that maybe you don''t eat so much or you are not hungry or you are overeating but it is one that if you don''t eat certain types of things, you could die because you need to eat something to get your blood pressure up or address your insulin, so when we are talking about eating it is a substantial limitation in eating, not some sort of minor type of thing. Again I think that is where we will see cases cited on substantially limited, we will no longer going to be debating whether or not eating is a major activity, because it is in the text of the ADA Amendments Act and therefore the courts will have no discretion. It is there. So now the only issue really that is left is whether it is a substantial limitation. For people with diabetes, again, I think that eating is something that can be alleged in certain circumstances but that may be again a more challenging path than just to make the simple assertion that because of your diabetes, you are substantially limited in the endocrine system which is listed as a major bodily function under the ADA Amendments Act. So it is important to think about all types of things and while eating is listed as the major life activity it is not guaranteed you would be covered under the ADA because of the burden of having to get over the substantial limitation that I referred to before. Another one that we won''t be talking about specifically but that does relate to some people with diabetes and some of the prior case law is major life activity of caring for oneself so you will see a lot of cases where people will plead not only eating but caring for oneself, because in caring for oneself you are having to monitor your blood sugar, you are going to have to give yourself insulin at certain times, wearing the pump, you know those are encompassed within caring for oneself and are different than eating so oftentimes in diabetes cases you saw one succeeding over the other and by alleging both that allowed the plaintiff to be successful in the case. Reproduction, this one is interesting because reproduction really has never been identified by the EEOC as a major life activity. It was never in the original regulations nor in any of the guidance and information that I have seen it may, they may have raised it in a brief or something but it hasn''t been sort of out front but most of you will remember that the first, one of the first ADA cases the Supreme Court took dealt with this exact issue. Is reproduction a major life activity? That was a case involving a woman with HIV disease and it was not actually a Title I case, not an employment case, but a Title III public accommodations case and she was somebody who was asymptomatic HIV and she went to the dentist, disclosed her HIV and he required her to not get treated in the dentist''s office but to travel quite a long way and be treated in a hospital setting for a teeth cleaning and she considered that to be discrimination because it was an extra cost, it was an extra hassle as far as the time to get there and also it was just stigmatizing to her because she was being treated differently because of her HIV disease but when she came time to prove she had a disability because she didn''t have any outward manifestations of her HIV what she relied upon what reproduction as a major life activity and she testified that she had decided not to have children because of her HIV, she didn''t want to pass it on to an unborn child, and so she had chosen not to have kids and so by doing that, she was substantially limited in the major life activity of reproduction and some people at the time before the Supreme Court ruling thought that was going be a real stretch and that the Supreme Court wouldn''t recognize it, but in fact they did recognize it, and even though it wasn''t listed in the EEOCs regulation they recognized reproduction as a major life activity. And so the ADA Amendments Act does nothing to overrule or change that. I am actually a little surprised that it is not listed as a major life activity in the ADA Amendments Act. It could have easily been done that way just to sort of continue the decision from the Supreme Court and put it in the text of the Act but for whatever reason, Congress didn''t choose to list reproduction as one in the illustrative list, now as Alan alluded to, the list is just illustrative, it is not determinative so you don''t have to be on that list but it sure does make it clearer for courts if something is listed there. But it is also clear to courts if you have a Supreme Court decision saying that something is a major life activity you are also bound by that and since that hasn''t changed, courts really again will have no discretion as to whether reproduction is a major life activity. Now they could say the reproduction is not a major life activity for a, it doesn''t work for a particular person because they are not substantially limited in reproduction but they can''t say that reproduction is not a major life activity because there is a Supreme Court precedence saying that it is. The other thing is that here with, with the plaintiff here in Bragdon, I think if that person were bringing the case now and we are -- wouldn''t not necessarily just limit themselves to saying reproduction even though you do have that Supreme Court case. It would make sense to go ahead and also put in there substantially limited in two bodily functions, the immune system and reproductive function. Some people say the reason why reproduction is not listed in that list of major life activities is because it was actually sort of morphed into a major bodily function in the reproductive function. That may be the reason why Congress didn''t put it in both places because they felt like putting it under major bodily functions was sufficient. So and I think that reproductive function could, you could argue it was broader because it encompasses people who have infertility as well. So I think again we are really clear that reproduction is major life activity and that people who have reproduction issues may also want to rely upon major bodily function of reproduction along with the Supreme Court precedent. What is a trickier issue is sexual relations, and how that plays out with respect to major life activities. After the Bragdon case and before the ADA Amendments Act was passed, some courts have gone ahead and recognized that sexual relations is a major life activity and said that just like reproducing is a major life activity, sexual relations should be as well because if we are talking about sort of more people have sexual relations sort of reproduction is a subset of sexual relations is I guess as way those courts decisions have said, if reproduction is a major life activity, then sexual relations is even more broad because not all sexual relations result in reproduction so those cases say that and there is a case from the 9th Circuit, the McClendon, that is in your brief that you will be getting that say that this was actually a person with mental illness, not HIV, who because of the medication they took for the mental illness was rendered impotent and they raised sexual relations as the major life activity. This was somebody who was not, was not someone who was planning on reproducing and didn''t have evidence of wanting to become a parent but could raise sexual relations as a major life activity instead and that was another case where the court, the defendant in the case was arguing that sexual relations shouldn''t apply because it doesn''t apply to anything in the workplace and the court rejected that, and said you don''t have to relate it to major life activities in the workplace and also said Bragdon should be extended to sexual relations and not limited to its facts of just to just reproduction. However, not all courts have agreed with that and have not extended sexual relations of the Bragdon case from reproduction. Now, interestingly we have in preparing for this webinar, I came across something that I hadn''t seen before and that is a house report and again this is listed in your brief and I would allude to it in the power point here, but there was a house report from a committee on education and labor committee and I guess it was a committee that met during the process of enacting the ADA Amendments Act and in that committee they said in addition to those major life activities that are explicitly listed in the ADA act, we also believe, this committee, this education and labor committee believes that other major life activities also include and they list a variety things including sexual relations or sexual activities so one of the things that I think if somebody can''t rely upon reproduction because they don''t have a factual basis for that and they are having to rely upon sexual relations they may want to look at this house committee report to support the provision. Now again, since it is not in the text, courts aren''t required to follow a house report. The house report is more just instructive on what Congress is thinking when they were working to pass the Act but since those words, sexual relations or sexual activities didn''t end up in the Act itself, courts are not required to use it but they can rely upon it saying thinks evidence of the intent of Congress. Something to consider for other things. And just so you are aware, some of the other things that this committee report mentioned as far as what they considered major life activities is applying fine motor coordination, reaching, swallowing, chewing, drinking, writing and interacting with others. So those are a lot of different ones that there has been some litigation on and some of those I have never seen any cases on those major life activities that were listed by this report. But I think as we move forward with litigation, this may be an area that the courts are going to have to grapple with because it is not in the text but it is something that gives at least some evidence of Congresss intent when they passed the ADA Amendments Act. The next one is driving. Driving is one unlike some ones that I mentioned before where I said there is a big split, driving is one where almost every case that has been brought plaintiffs have lost and have not been successful in proving that they are, that driving is a major life activity. You don''t even get to the substantial limitation. They reject driving right away as major life activity and I think it is because they feel like you don''t have to drive and there is people who don''t drive or live in places that don''t require a car and so they felt like it is unlike walking and breathing and some of the other major activities, that driving didn''t rise to that level of being major life activity. So, it is never really been identified as a major life activity by the EEOC, its not listed in the ADA Amendments Act and most courts that have looked at this when people have raised it the courts have rejected it. They have sometimes recognized traveling as a major life activity as opposed to driving but so many of these cases really are focusing on the person''s ability to drive and so it is one where I think you see a lot more driving than we do traveling. So I think if people have been relying upon driving before, it is going to be difficult to do that in the wake of the ADA Amendments Act because it is nowhere listed in the text. So instead this is one of those times when we want to look at major bodily functions instead to see if there is potential coverage for people who had previously relied upon driving. So I think the classic example here is people with epilepsy who in previous cases have alleged they were substantially limited in the major life activity of driving, then driving was rejected so what they can do now is instead they can look at limitations in neurological major bodily function because neurological is listed under those major bodily functions list we talked about before. And then there is another case in your materials that said that normal cell growth is, excuse me, somebody with cancer was not substantially limited in the major life activity of driving, so if that were being litigated again today that person would want to rely upon the major bodily function of normal cell growth as opposed to driving because driving is going to be much harder to prove given that it is not in the text of the ADA and you have nothing from the EEOC and most case law is against that whole thing. There is a case that is in your materials that just came down last week from the 7th Circuit that reaffirmed that driving is not an ADA disability. Now that case was decided before the ADA Amendments Act or excuse me the conduct involved was decided before the ADA Amendments Act was effective so you can argue maybe courts will look at things a little differently because they are going to be taking a more positive view of substantial limitation and not such a strict view but I think even that way if you can''t get the underlying activity listed as a major life activity it really is going to be irrelevant whether there''s a substantial limitation or not. Eliminating bodily waste. As I alluded to at the beginning of when I started talking, sometimes there are just impairments that we presumed would be covered by the ADA but they weren''t an easy fit and I think cancer, heart disease and kidney disease are sort of the top of the list. And so like I alluded to, it is difficult before the ADA Amendments Act it was difficult for plaintiffs with kidney disease to identify any kind of major life activity they were substantially limited in and often times they were limited to going to working but in 2004, there was a really important case decided, the Fiscus versus Wal-Mart case out of the 3rd Circuit and again you will have these in your briefs and in that case the person raised elimination of bodily waste as the major life activity that they were limited in and this was pretty novel at the time, we hadn''t seen these sort of bodily inward functions, it had been more outward volitional acts kinds of things for major life activities, and the 3rd Circuit agreed and said you know elimination of bodily waste is critical. If you don''t have, if you don''t do that, you can die and so what could be more major than that and the court also said a major life activity doesn''t have to be volitional or public behavior. They said really the touchtone of a major life activity is its importance or its significance. And so what has happened now is that we have now gotten to the ADA Amendments, elimination of bodily waste isnt in that major life activity list but the bladder is listed as one of the major functions and so I think people with kidney disease will want to, they can certainly raise elimination of bodily waste again, but I think they should also say they are substantially limited in the bodily function of their bladder. That is really what I think Congress was trying to get to. And Alan had mentioned before the EEOC is going to be putting out some regulations. We saw a little bit of a draft of regulations that had been circulated around, ultimately it wasn''t approved it was a split in the EEOC commissioners on whether they had proven them or not and because somebody had left the commission there were only four people and two voted in favor of passing them and two voted against it, so there are still evolving but some of what we saw in those drafts were really trying to explain what these major bodily functions mean and who they are really trying to protect. So I think we will see even more information on how this majorly function of the bladder could protect people with kidney disease. The next slide is very similar, pumping and circulating of the blood. Certainly in the wake of the Fiscus case that I alluded to there was another case, in Pennsylvania the Snyder case that will be in your materials. And this was a gentleman with heart disease who was a locomotive engineer and he was medically disqualified from his position and he sued under the ADA and he said well why eliminating bodily waste, pumping and circulation blood is a major life activity, I have heart disease and that is what I am limited in and pumping and circulating blood is at least, if not more important then elimination of bodily waste and the court agreed. And we dont have a lot of cases like this. What we do have now is the ADA Amendments Act and the list of major bodily functions you will see the circulatory system listed. Pumping and circulation blood isnt in the major life activity list but you can assert that. But the circulatory system is in the major bodily functions and so I think people with heart disease will definitely want to rely on that bodily functions in any litigation that they might bring. Performing manual tasks the EEOC and the courts it wasnt a lot of controversy. It was agreed that performing manual tasks was a major life activity and if you look at the ADA Amendments Act list performing manual tasks is listed there. What really I think caused the confusion over performing manual tasks is the Toyota versus Williams case. I think Alan alluded to that before and this is really the Toyota case and the Sutton case were two of the main reasons why these supreme court, excuse me, why Congress revisited the ADA with the ADA Amendments Act because they felt like these cases were so problematic and so contrary to congressional intent. In that case you had a woman with carpel tunnel syndrome who had requested an accommodation so that she would not have to work in a situation where her arms were over her head. She wanted to do functions where her arms werent over her head and wouldnt exacerbate her carpel tunnel. The accommodation wasnt provided and she was fired and then sued under the ADA. And when she sued under the ADA she said that she was substantially limited in performing manual tasks, that was a major life activity. Well the Supreme Court said that in determining whether somebody is substantially limited in a major life activity of performing manual tasks you have to look at not just the task at work which is what she was focusing on but tasks that are central importance to most peoples major lives. So they looked at things like, could she brush her teeth, could she dress herself, could she take care of herself, could she take care of her children, and they said at looking at those kinds of things you will find that she is not substantially limited in performing manual tasks, even though she was unable to do certain manual tasks at work because of her carpel tunnel and the supreme court didnt end there because they went on to say that the definition of disability should be interpreted in a strictly and demanding standard. And again, as I said before, Congress said that is really contrary to prevailing civil rights law, that that should be interpreted more liberally and to effectuate an important purpose and so as a result of Williams hundreds of cases were dismissed, not only people who were alleging manual tasks but other major life activities as well. And so what we have here with performing manual tasks, it is in the ADA Amendments Act so we know for sure it is considered a major life activity. There can''t be litigation questioning that. Again what will be whether there is a substantial limitation but since the court repudiated Toyota versus Williams we no longer have that sort of demanding standard, we have construing in favor of broad coverage of language under the rules of construction for the definition of disability, so this is one I think we are going to see some litigation in but I think employees will have an argument that it should be applied much less strictly and that the previous cases dismissing a case because they couldn''t show they were substantially limited in performing manual tasks, I think those cases aren''t necessarily going to be strong precedent because they relied upon Williams which Congress has repudiated in the ADA Amendments Act. Interacting with others is another one that has sort of been identified by the EEOC, not initial regulations but later and the courts have really been all over the map on this one, it has been really challenging to figure out where the courts are because this is one like lifting and concentrating where the courts are really very split and you have got courts looking almost essentially at the same facts, there is two cases in your brief, one involving -- both involving people with mental illness, one said that interacting with others is just like walking and breathing and so it is a major life activity and then the other case says interacting with others is different from walking and breathing and therefore not a major life activity. They used almost the exact same language and reached completely opposite results. And so this is one where it is going to be continuing to be challenging because the ADA Amendments Act does not list interacting with others so employees are going to have to try to prove that it is a major life activity and then prove they are substantially limited in that major life activity but there are some courts out there that have said it is not a major life activity and nothing in the ADA Amendment Act text changes that. Now, I did allude to that house report from the Labor and Education Committee and that did refer to interacting with others but again courts aren''t necessarily bound to follow that, that is just something they can consider. So I think we might see quite a bit of litigation on interacting with others. And so this is one I think for employees not to rely upon. So if you do have a lot of these cases arise for people with mental illness, if people with mental illness do have an employment case to bring, certainly you can raise interacting with others but it would be suggested to look at others like the brain functioning or concentrating that we talked about before. And then the last major life activity I wanted to mention is working, and I left that last on purpose because although the EEOC and most courts agree that working is a major life activity and it is listed in the Amendment Act list. So it is in the text of the Act, the standard of it has been very challenging when you are talking about somebody who is substantially limited in the major life activity of working. The EEOC standard they adopted and that this point still stands is that you have to be substantially restricted in the class of jobs or a broad range of jobs. Now, the Congress has told the EEOC to modify substantial limitation definition to no longer be significantly restricts, they feel like that is too high a standard. But they didnt tell them to get rid of this class of jobs or broad range of jobs. So I think we are really going to be looking at the EEOC regulations that come out how they, if they change working at all. Or if they keep this class of jobs or broad range of jobs but it is a difficult burden to meet and the EEOC itself has said working should be used as really a last resort, and shouldn''t be relied upon unless you have nothing else to raise. And one reason why it should be used as a last resort is if you do rely upon working you spend all this time proving that you are substantially limited in a class of jobs or broad range and really showing you can''t do anything. Well then once you get over that hurdle the next thing is you have to do is to prove you are qualified and if you spend all this time trying to prove you can''t do anything in the work place and then you have to prove you are qualified that is going to be challenged. Obviously you can incorporate reasonable accommodations to show why you are qualified but it is a pretty uphill battle so I think just as a general rule working is sort of something that employees should definitely stay away from and that may be modified by the EEOC regulations but as of now that certainly would be the prevailing view. The other thing I wanted to mention before we open it up for questions is retroactivity. Remember the effective date of the law was January 1st so even though the law was passed in September, it wasnt effective meaning it didn''t go into effect until the first day of 2009. So the general rule for all statutes, not just the ADA but all statutes is that you don''t apply statutes retroactively and the reason is just a matter of fairness, it is not fair to hold somebody responsible for something that wasn''t effective or wasn''t binding at the time the alleged discrimination took place, its just not fair to hold employers to that and they are relying upon what the law was at the time they engaged in whatever activity they did. The general rule is that statutes should not be applied retroactively and the -- really what we are talking about with the ADA Amendments Act is any conduct, not case file, but conduct by a defendant starting January 1 and moving forward. So cases that were filed before or conduct done before January 1st generally I think the rule is that you are not bound by the ADA Amendments Act. However there is an argument out there and the Rivers case supports this as a general principle that you should apply retroactive -- apply a statute retroactively when the statute has restorative purpose to get back to the Congress''s original intent so the ADA Amendments Act isnt a new law, the argument goes, it is restoring what Congress originally intended and therefore the sort of policy against retroactivity doesn''t apply here. I think that is the minor view but that is certainly a view that people could assert. We have some case law that has come down, we have the 7th Circuit in the King case that says the ADA Amendments Act does not apply retroactively and the case I referred to before, the Winsley case from the 7th Circuit from last week did not apply the ADA Amendments Act retroactively so I think it is pretty clear that most courts are not applying the ADA Amendments Act retroactively. The exception though is the 6th Circuit case, this Jenkins case, the Jenkins case is that case involving a gentleman who -- it wasnt an employment case. It was a student who had a learning disability and was trying to get accommodations, modifications of the licensing exam for the medical boards and he was seeking additional time. And he said that the ADA Amendments Act should apply because he was seeking prospective relief, he was seeking a change in the test and the change in the test would be after January 1st, that that should be -- you should apply the Act in the broad interpretations of major life activity and substantial limitation. National Board of Medical Examiners said no the conduct, the denial of the accommodation was before January 1 and therefore we shouldn''t be bound but the court in 6th Circuit relied upon some case law that is out there that says generally when you are only speaking prospective and injunctive relief and not monetary damages for past bad conduct you should be able to apply a statute to the prospective injunctive relief and not wait until after the effective date and so in that case they said that they could apply the ADA Amendments Act and in that case the plaintiff was also seeking attorney''s fees and the National Board said well since they are seeking attorney''s fees that changes it into a damage action, there are monetary damages and the court said well no attorney''s fees are collateral to the main cause of action, they are not damages so they allowed them to get that injunctive relief. I also threw in the 9th Circuit case, the Rohr case that just talks about how, even though you are not applying the ADA Amendments Act retroactively it does provide guidance on Congresses original intent and so some courts are starting to say even though the ADA Amendments Act doesn''t technically apply. It indicates the intent of Congress and so some of the major life activities that are being listed, they are giving more deference to than they would ordinarily because the Act was passed so technically not retroactively but definitely looking at it as an influence on what decisions they are making. And then as Alan said, the regulatory authority has been given to the EOCC, Department of Justice and the Department of Transportation, to issue regulations and to repudiate Sutton''s decision that the Supreme Court can ignore federal regulations on interpreting definitions of disability and that the EOCC will soon be redefining substantial limitations. Which we said before was significantly restrict. Congress has asked them to redefine substantial limitations definitions as part of the ADA Amendments Act. Then we just have some quick resources listed here, obviously the DBTACs, who hosts these webinars they are a great resource, you can also contact Equip for Equality and Illinois ADA Project that we help support, there is a lot of information there, the Job Accommodation Network has good information as well on a lot of these issues and then I have alluded to a lot of ADA regulations and guidance and if you want to find those, I find the easiest is to go to the EEOCs website, eeoc.gov and then just go in the search box and put in the various regulations or guidance that you are looking for and usually it comes up pretty easily. I also have a link there for the text of the ADA Amendments Act, sometimes it is hard to find what the final version of the Act was and ada.gov has it right there and then obviously you can contact the ADA Technical Assistance website for additional ADA information. So at this point, I think we can open it up for questions. Got about five minutes left. Any questions people have? You can either type in your question or you can hold the control key and ask it.
While we are waiting for people to collect their thoughts here to ask questions and I -- this is a lot of information and you have run through a very comprehensive discussion of the various issues that people are dealing with or that we know that the courts are going to be grappling with in the next year and two as they get oriented themselves to the ADA Amendments Act and what it actually means so we definitely thank you for that. At this point, we just want to know from the audience are there any questions that people have, clarifications of the information, that either Barry or Alan provided us. Again type it into the chat area or feel free to use your microphone by holding the control key down while you speak. Seems we have silence is golden. I don''t know, Barry and Alan, that means you have overwhelmed them with the information, or that you have put in so much information that people, you have left them without any questions to ask. But just from your sense of things and where things are going with some of the ways you have seen things playing out so far, in regards to how some the courts are approaching this, where do you think the legal community is on these issues? Can you give us insight from your own experience and your own knowledge what is happening in the various bar associations and things of that nature, where attorneys are coming down and what the outlook is in relationship to attorneys even being more readily willing to even approach ADA cases, because some of the bars to the definitions of disability and the areas of proving some of these major life activities issues, often held attorneys reluctant to take ADA cases. Do you have any thoughts on that particular issue?
Yeah that is a really good point. I think a lot of people are still absorbing the information, trying to figure out what it means because so much of the conduct has been done before the effective date so we don''t have a lot of cases yet but I think what we do have is we have people considering cases that they normally wouldn''t. I know we here are now looking at cases we wouldn''t have taken before under the ADA, so diabetes cases, you know the really mitigating measures cases, Sutton cases are now ones we are looking at more than we would have before and I think the private bar is doing the same thing. So, I think this is really opening up opportunities for employees to find representation more easily. I think it is also again from my perspective really providing some more clarity to both employers and to employees and I think you have a lot of employers who are going to trainings and thinking about maybe changing policies they had or reinterpreting things, or maybe granting accommodations they might not have accommodated before given this. So, I think we will see some changes in the court but also we will see is a lot of changes in the practice and day-to-day work of folks in the HR field. I see a question from. I will go ahead and start with that. When it comes to back and heart issues does the recency of medical attention impact the validity of the disability? Well, I think that gets to the whole issue of substantial limitation and you would have to show that you are substantially limited in your heart issues or your back issues at the time of the alleged discrimination. I mean, remember, we still have the other prongs of disability Alan alluded to, being regarded as being easier to prove so even if it wasn''t something that you had a current issue but they regarded it as currently having the impairment that would be a way to bring in and then you also still have the record of disability. If you had a heart attack in the past and you have had some sort of surgery and now you are currently substantially limited in circulatory system which would be what with you what be pleading I think you would still be able to go to it and looks like Alan has typed in and said that people with a record of disability are also covered so that is what I was talking about and the recency of treatment, the reasonableness of the accommodation and request. Under the ADA Amendments Act, episodic conditions are viewed when active to determine substantial limitation. And the other thing we know to is that if you are under the regarded as, you are no longer entitled to reasonable accommodations so if it''s not recent, that is going to undercut your ability to get an accommodation because you are no longer under the actual prong of disability. Hopefully that answers your question. Thanks Alan for your support there. I know we are near the end. Robin, I am going to let go and you can see if there are anymore questions or wind it up. We are doing the Legal Update on Title III Case Law and then I will move the slide to the evaluation page.
Thank you, Barry and Alan. And I also want to just for the record get in other questions she asked about whether or not the reproduction coverage also includes men as well as women and I think Barry''s response was that, yes, that he believes it would, there really is not a distinction between male and female when it addresses that particular issue and thank you for that response. Alan has affirmed that and so has Barry here. I am confused as to who is who right now. Anyway, I do want to thank everyone including our speakers for joining us today for this session. I do want to remind you that we have a session scheduled for June 30th, Tuesday, same time, same place. This is a little bit of a deviation from employment-related issues and we are going to be revisiting the issues under Title III in case law, we have -- you see very little out there focusing on what is happening under Title III but there is some activity out there that is of interest and I think that those of us who work in this arena or have interest in this area want to know more about and track so please join us on June 30th for that particular session. And for more information about the rest of the year sessions please go to the website, www.ada-audio.org and choose the option for the legal webinars. You will also see that they have posted the evaluation link. We will also be sending this to you by e-mail along with the power point presentation and the legal brief at the conclusion of the session. Again, I want to thank those of you that joined us today as well as our speakers for your attentiveness and interaction on this topic and I hope everyone has a great rest of their day and a great rest of the week. Thank you very much for joining us. Take care.