We''re just before the top of the hour. Just this one more sound check before we begin in about 3 minutes or so. I hope for everyone who had signed in is able to here me at this time and has been accessing the close captioning if you are needing that. And we''ll begin at about 1 o''clock or the top of the hour, wherever you might be. Until then, you''ll just hear silence, and hopefully, you''ll be able to see the screen next to us. And I''ll ask Barry or Alan to refresh that just one more time for us before we start. And then Alan, when I start, I''ll give you the heads up and I''ll ask you, when I start recording, to also do a refresh just so we capture all of the slides on our recording as well. Thank you. Okay Barry, Alan, if you can refresh sometimes, we can capture into the recording, we''ll begin and ready to start.
We are at the top of the hour and I want to thank everyone for joining us today. And we are happy to have you. And welcome to the last session in this school year for us. This school year runs from October 1st to September 30th, so we have a whole new series that we''ll be offering beginning of October 1 of next year. And I hope you will join us or consider joining us. The topics for that program has been identified and is available on the website. And our speakers will just address that a little bit at the end of the session to let you know what''s coming next and when it is coming next before you sign off today. So on behalf of the ADA National Network and the Great Lakes ADA Center, I welcome you to our session today, and I am going to go ahead without further ado and turn over to our speakers. And today we have joining us Barry Taylor who is the Legal Advocacy Director for Equip for Equality which is the protection advocacy agency for the State of Illinois. And you can access more information on his bio on the ada-audio.org. website. And we are also pleased to have with us today Brian East, Senior Attorney with Advocacy, Incorporated, which is the protection advocacy agency for the State of Texas. And Barry will do a little bit more introduction of him when he starts and when they go into the session today. So again, as I said, I am happy to have you with us today. Just to let you know, the session is being recorded and an archive will be made available following this session in approximately 5 to 7 days once we can edit the transcript and get it back up again for everyone to be able to view. We''ll also be sending at the end of this session some additional materials as I mentioned in the form of a legal brief as well as some information seeking your feedback on today''s session through an online survey that you''ll have a link in the e-mail that is a follow-up to this session. So without further ado, I''m going to go ahead. There''s a lot of information to present today, and turn the session over to Barry Taylor. Barry, go ahead.
Thanks Robin and thank you everybody for joining us today. Hopefully the information we provide to you will be helpful. Today''s session is focusing on Litigation under the ADA Amendments Act. And the way we''re going to break it down if we go to the next slide is first I''m going to talk about real briefly the ADA Amendments Act and also the Equal Employment Opportunity Commission''s proposed regulations which are known as the NPRM, which is an acronym for Notice of Proposed Rulemaking. You might recall that those proposed rules were issued in September of 2009, a year ago, and there was an opportunity for the public to comment on those and give input. And also the--but despite the fact that these had been common and these were issued a year ago, these rules are--these rules have not been finalized. And so we''re still awaiting the EEOC to finalize these. But what''s been interesting, and Brian will allude to this later is that even though they''re not finalized regulations, courts are starting to even refer to them in their proposed form. After I give that quick overview, we''re going to stop for questions to see if anybody has any questions about the act itself and the proposed regulations, and then move to the sort of the meat of the presentation today which is Litigation under the ADA Amendments Act, and a variety of topics that the courts are grappling with. And Brian will be addressing that. And we''re really fortunate to have Brian be part of our presentation today. People probably know Brian. If you don''t, he is one of the most, I think, respected and renowned ADA experts in the country, follows very closely ADA litigation reading every case, and has a wealth of information. I think he''ll be able to provide a lot of insight on how the ADA Amendments Act is being interpreted by the courts. As Robin alluded to, there is a brief that you''ll be getting afterwards. It''s a legal brief that''s much more detailed. And so what you''ll see in your PowerPoint is an overview of some of these issues. And then more detailed analysis is in the brief that you''ll be receiving along with the evaluation. And I appreciate Alan Goldstein and Richard Margoulis'' assistance in taking the lead on that brief. So, let''s, move on. On slide number 5. The first issue is really the crux of it all which is the broad interpretation of the definition of disability under the ADA Amendments Act. People will remember that the reason the ADA Amendments Act was passed in the first place was to respond to the narrow interpretation of courts especially the narrow interpretation of the definition of disability. And as you''ll--as is listed on slide 5, it stated the definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the Act. And you''ll see this theme of broad coverage with respect to the definition of disability throughout our presentation today. Also, the Supreme Court overruled a couple of Supreme Court case--excuse me Congress in passing the ADA Amendments Act, overruled a couple of US Supreme Court ADA cases that had narrowly restricted the definition of who is covered under the ADA and who has the disability. And the first case that''s listed on slide 5 is the Toyota Motor case which had a couple of phrases within that opinion that were used a lot by the lower courts. One was that the definition of the disability needed to be interpreted strictly, and this was really contrary to other courts interpreting Civil Rights laws which have generally said that Civil Rights law should be interpreted liberally to effectuate a really important purpose. And then the Court also said in the Toyota Motor case that when you''re demonstrating that you have substantial limitation, you have to show a substantial limitation of activities of central importance of daily life. And so oftentimes, they''re saying, well, you know, can they brush their teeth, can they dress themselves, can they take care of their kids. You''re adding a layer of scrutiny that had never been contemplated, I think, by Congress and was not in the text of the ADA nor in any of the regulations. And so, that really created a real bar for a lot of people in trying to prove they had a disability under the ADA. Slides 6 please, the Supreme Court--excuse me, Congress also overruled a Supreme Court decision that''s known as the Sutton trilogy. It was actually 3 decisions. But generally, all 3 of those cases had held that if you use a mitigating measure like medication or an assistive device to address the manifestations of your disability, those mitigating measures were to be taken into account when determining whether you have a substantial limitation in a major life activity. And Congress said, "You know, Supreme Court, you got it wrong, you should not be interpreting--you should not be incorporating mitigating measures as part of the analysis of substantial limitation." And so they basically said that both Sutton and Toyota were no longer good law, and was really one of the major reasons why the ADA Amendments Act was passed in the first place. And they''ve given examples in the ADA Amendments Act of types of impairments that typically Congress expected to be considered disabilities and were found not to be because of this narrow interpretation by the courts. And so listed on slide 6 are a variety of disabilities including cancer, intellectual disabilities, multiple sclerosis, mental illness and such. And so, Congress wanted to make clear that those were impairments that they generally expected to have been deemed disabilities and wanted to overrule what the courts had done in contrast to that. Slide 7. And so in addition to what the Congress said in the ADA Amendments Act, the EEOC reinforced in its notice for proposed rulemaking, and reinforced that disability should be easier to prove. There''s an EEOC fact sheet that''s referenced on slide 7. There''s a link at the bottom of that slide. And I would recommend that you look at that because it''s a very comprehensive and easy to understand in a question-answer format about 28 different questions of common issues that people are having and questions about the ADA Amendments Acts. So if you haven''t reviewed that, I would really recommend that you do, because it provides some real good perspective from the EEOC on how they believe the ADA Amendments Act should be interpreted by the courts. Slide 8. And the ADA Amendments Act, the text of the Congress also said that courts should be using this less stringent standard when determining whether an impairment is substantially limiting so that more people are going to be able to proceed with their ADA cases. And they, specifically as we said before, rejected the Toyota "severe restriction" standards. And then they also told the EEOC that its initial interpretation of substantial--substantial limitation was incorrect as well and they needed to change that. As you might recall, the EEOC had interpreted back when the ADA was originally passed substantial limitation to mean significantly restricted. And Congress said that''s too high a bar for you to be placing on people with disabilities and so you need to change that when you''re issuing your new regulations. They also said, and we''ll go into this in a little bit more detail on a second, is that substantial limitations are measured against most people in the general population. Slide 9. So the EEOC provides more detail on substantial limitation, and they--if you halfway down in slide 9, it talks about the term "most people" that I referenced on the previous slide. And Congress wanted to use most people instead of "average person", the EEOC said, because average person tends to sound something that requires more statistical analysis or maybe expert witnesses. And in fact, some courts were requiring people to use experts to prove their case under the ADA and prove whether they had a disability, and Congress said, "No, we need a more common sense approach, so we''re going to use the term ''most people'' as opposed to ''average person'' and that will make clear that we''re not talking about statistical analysis but more a common sense approach." Slide 10. The EEOC has also rejected the common interpretation of disability that''s been used where a variety of factors are used, where you would look at the condition of the disability, the manner of the disability, the duration of the disability or impairment to determine whether there''s a substantial limitation. And the EEOC in its proposed regulation said, "You know, that''s way too detailed. It''s way too specific on analysis. You could find that somebody''s substantially limited to even if you just show the duration, the fact that it''s lasted a long time, or the manner , the fact that it requires somebody to use--or the duration as far as the distance a person can work, things like that." So, what the EEOC wanted to get away from is this sort 3-part analysis looking at condition, manner, and duration, and instead, just look and see whether there is any kind of more common sense substantial limitation. The slide also indicates that an impairment''s duration for several months could be sufficient to show substantial limitation, and that an impairment may substantially limit a major life activity even if it lasts fewer than 6 months. And again, this is the EEOC''s proposed interpretations and so we''ll see if this is still remaining. But this is something that has been a concern I think that some people have raised as far as something under 6 months because I think the general rule of thumb when the ADA was originally enacted, people were interpreting it to be more than 6 months, and the EEOC''s interpretation is that it could be even fewer for than 6 months for people with the present or actual disability. Next slide, 11. The EEOC also talked about how--the relevant inquiry here is how a major life activity is substantially limited not on what the individual can do in spite of the impairment. You might recall that there have been a number of cases out there where they said that--they looked at not how they were limited, but what the person had done to overcome the limitation. And the fact that the person had acted to overcome the limitation was sort of used against them. So, a common scenario was in cases involving people with learning disabilities and the fact that they had come up with strategies to overcome some of the limitations from their learning disability, and the fact that they were able to score despite the actual learning disability that they have and scored well on tests was used against them when they''re tying to prove substantial limitation. So, the EEOC said, "That''s not what we should look at, not what people have done in reaction to their impairment, but instead, look at the actual substantial limitation." The EEOC did talk about that temporary non-chronic impairments that are of short duration should not be considered disabilities, and they gave some examples that are listed on slide 11 including the common cold, common flu, influenza, sprained joint and such as that. The EEOC in its proposed regulations also said that even under the ADA Amendments Act, pregnancy is still not considered a disability although they did make clear that certain impairments that result from pregnancy could be considered disability if they are themselves substantially limiting--substantially limiting. Slide 12, please. The ADA Amendments Act and the EEOC''s proposed regulations looked also at the issue of episodic conditions and remission. There were some court cases before that placed in doubt whether people who had episodic conditions or those in remission were able to prove they had an ADA disability. And both Congress and EEOC have clearly stated that an impairment that is episodic or in remission will be a disability if they would substantially limit one or more major life activities when it''s active. And the EEOC provides a little bit more detail in its proposed regulations with a nonexclusive list of impairments that may be episodic or once they go into remission. And so some common examples they list here are epilepsy, hypertension, cancer, mental illness. Those kinds of things that are episodic or can go in remission will still be considered an actual disability if they are substantially limiting when active. Slide 13. The ADA Amendments Act also looks at the issue of major life activities. And I didn''t say this is the beginning, but just to be clear, the Congress decided not to change the definition of disability. That hasn''t changed. They just provided more information about how it should be interpreted and given more examples in the text. So, it''s--the definition of actual disability still is a physical or mental impairment that substantially limits one or more major life activities. But what they''ve done, for instance, with respect to major life activities is they''ve actually listed examples in the text of the ADA which I think is going to be very helpful for people in bringing cases and for courts when they''re analyzing these cases to know exactly what Congress intended. Before these examples were in the regulations and there was questions whether the federal author--federal agencies that issued those regulations had the authority to interpret the definition of disability, and those questions whether you should refer to those regulations. Well, now there''s no question about it because these examples are right in the text itself. And one thing that Congress has done beyond just listing traditional major life activities is they''ve also have a list of what are called "major bodily functions." Congress had found that a number of people who had impairments that didn''t easily fit within the definition of disability were being excluded even though Congress had wanted them to be included. And so, for instance, people with cancer were having a hard time finding a traditional major life activity to show that they were covered by the ADA. So, Congress said, we''ll let''s add some bodily functions, and that will cover those folks. So for instance normal cell growth. If you are substantially limited in that major bodily function, you''re covered under the ADA now, it''s clear. And so people with cancer can point to normal cell growth, or people who have diabetes can point to the fact that they''re substantially limited in the major bodily function of their endocrine system and won''t have to worry about showing that they''re limited in the major life activity of eating, for instance, which was a highly litigated issue. They can just point to this major bodily function now which I think will make it much more clear both for litigants and the court. Next slide. So what you see on this slide are major life activities that are in the text of the ADA itself and were previously identified by the EEOC. So these are all ones that should be very familiar. And they really have, again, just been shifted expressly into the text of the ADA so the courts won''t have any question. That includes very common major life activities like caring for oneself, lifting, hearing, eating, sleeping, and so forth. And again, the Congress wanted to make clear that this a nonexclusive list so certainly courts can recognize other major life activities that aren''t listed here. Slide 15. The text of the ADA also has 3 additional major life activities that were not previously identified by the EEOC in its regulations or guidance, and those are reading, bending, and communicating. So again, if people can show that some major life activity that they''re substantially limited in, they can just point to the text of the ADA Amendments Act, and that''ll make it much easier for them to prove they have a disability. In addition to those that are in the text of the ADA itself, the EEOC has identified 3 additional major life activities - interacting with others, reaching, and sitting. So, certainly people can argue that those are the only ones that affect their--in which they''re substantially limited, they can rely on those and point to the EEOC''s regulations that these are actually in the regulations when they''re finalized by the EEOC and point to those. And again, the EEOC confirmed that just like that the list in the text of the ADA Amendments Act, the list in the proposed regulations also is a nonexclusive list and there should be no negative implication by an omission if something else is argued to be a major life activity but not necessarily in the regulations or the text itself. Slide 16. It looks like we lost a little bit of our formatting when this got uploaded but hopefully in the version you get, this won''t be the case. But in any event, what you see in this slide 16 is a list of those major bodily functions that I alluded to before. On the left side of the slide are a list of major bodily functions that are listed in the text of the ADA Amendments Act itself. So, as I referred to before, normal cell growth, endocrine system, respiratory system and so forth. The EEOC in their proposed regulations added an additional 6 different proposed major bodily functions that they believe also should be a basis for the definition of disability. So they have special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal. And I think that last one, musculoskeletal, probably will be one of the most interesting ones as we move forward given that a lot of people with back impairments may be relying upon that. And that''s been a high percentage of some of the charges that have been filed with the EEOC. The EEOC''s proposed rules also contain additional 2 lists that we''ll talk about in more detail. But just to reference them here, one is the list that are impairments that should consistently be found by courts to be a disability, and the second list would be impairments that may be disabling for some but not for others. And as I said, we''ll talk about that in just a second. Slide 17. Before we go to that, though, we just wanted to give some examples of these major bodily functions since this is a new concept that we''re not used to before the ADA Amendments Act, and some examples of some impairments that would likely fit within some of these major bodily functions. So, immune system, we anticipate HIV and AIDS or other autoimmune disorders, and lupus would fall under there. Normal cell growth as referred to before would include cancer, digestive, Crohn''s disease or Celiac disease, bowel, ulcerative colitis. The bladder, kidney disease would fall there. Reproductive functions, infertility. If somebody''s substantially limited in the neurological system, that would include multiple sclerosis or epilepsy. If it''s their brain, you could include schizophrenia or developmental disabilities. For respiratory, you could include asthma. For circulatory, heart disease and high blood pressure. And for endocrine, diabetes. So, what we saw before the ADA Amendments Act that was regarded as disability claims which we''ll talk about in a minute are not actionable if the impairment is both transitory and minor. The implication of that is that if it''s not applicable to regarded as claims, impairments that are transitory and minor would be applicable in the other prongs of the definition of disability for present or record of cases. Next slide, slide 19, great. So, the EEOC went a little further. They did one clarification which I think is helpful from a language standpoint, and they--they changed the term "mental retardation" to "intellectual disability" which is a change in terminology we''re seeing in a lot of other statutes, and so they want to make clear that''s the preferred term currently. They also gave examples of variety of impairments like asthma, back impairments, carpal tunnel syndrome. And they also made clear that impairment extends to mental impairments as well. Turning to slide 20, we get into that issue I raised before and that is this list that the EEOC is putting as proposed regulations. And again, these are proposed, so we have to wait and see if these are are still here when it''s final. But what they proposed is the first list would be examples of impairments that consistently should meet, when the courts are looking at this, the definition of disability. And they gave examples like autism and cancer, HIV, epilepsy, diabetes, mental illness. And so the EEOC''s perspective is that when somebody has this type of impairment, each--they will constantly meet the definition of disability and very little scrutiny should be taken when people have this type of impairment, very little scrutiny by the courts. And then they have a second list that they said that maybe disabling for some and not for others based on how that impairment impacts that person. So they may need to be a bit more evidence provided or a bit more scrutiny by the courts. And some examples there are high blood pressure, back impairments, some psychiatric conditions, and learning disabilities. And when the EEOC put this out, there were some concerns that were raised by a number of folks. I think employers were concerned that this list undercut the view that you have to provide an individualized assessment and that there shouldn''t be a per se impairment being a disability. And I think there are also concerns from people who were affiliated with people who had conditions listed in the second list that they were having to provide more information than people in the first list. So, the EEOC got a lot of comments on this issue. And I think we''ll have to see if these lists stay the same once they finalized their regulations. But I think what the EEOC was just trying to do was to get to what the Congress really support clearly in the text of the ADA Amendments Act itself and that is that courts should spent really most of its time determining whether people, employers and other potential defendants have met their responsibilities on the ADA and whether discrimination has happened and not spend so much time determining whether somebody has a disability as was done previously. And so I think what the EEOC was trying to do here was really effectuate that clear intent of Congress. Next, as I referenced before, the EEOC, excuse me, Congress specifically said overruled and rejected to Sutton case and said that no longer should courts incorporate mitigating measures in determining whether or not somebody has a disability or not, that should not be part of the analysis. And the text of the ADA actually provides some examples, again, a nonexclusive list of different mitigating measures. So that most common one is medication and they give other examples like medical supplies or equipment, hearing aids, cochlear implants and those sorts--types of thing. Congress did want to make clear though that ordinary eyeglasses or contact lenses can be considered when determining whether somebody is substantially limited. So they did carve out an exception for ordinary eyeglasses and contact lenses. Congress also gave other examples like the use of assistive technology, auxiliary agent services and learned behavior or adaptive neurological modifications as all kinds of things that should not be considered when determining whether somebody is substantially limited in the definition of disability. On slide 22, you''ll see that the EEOC provided a same list, a similar list that Congress did, but they also added surgical interventions except for those that permanently eliminated impairment as an example of the mitigating measures. So, when I hear surgical interventions, the example that I thought of was somebody who has heart disease and gets surgical intervention of a pacemaker put in, that''s their mitigating measure. But because that pacemaker doesn''t eliminate the impairment, the person still has had some sort of heart impairment that would the pacemaker would not be considered by the court in determining whether they''re substantially limited in the major life activity. So, it''ll be interesting to see if this surgical intervention is still listed by the EEOC when they finalized their regulation ''cause that adds another layer of mitigating measures. The EEOC also helped to differentiate between ordinary eyeglasses and contact lenses from assistive technology that magnify images or enhance images for people who have low vision. So those devices that magnify text are not the EEOC says the same thing as the ordinary eyeglasses and contact lenses the Congress said you could use to consider when determining whether somebody is substantially limited. And then the EEOC also said that employers, even with respect to people who have corrected vision, that employers can''t use qualification standards or employment test based on a person''s uncorrected vision unless they can show it''s job related in consistent with business necessity. And this is really the same standard that existed before, but I think the EEOC wanted to reiterate that given that Congress in the ADA Amendments Act still allows courts to consider eyeglasses and contact lenses when determining whether somebody has a disability. Slide 23. And this just provides a little bit more information again that you should be looking at the limitations without the mitigating measure and rejecting the case law to the contrary. A couple of things near the bottom of slide 23 that I think are important to point out. One is that if there are negative side effects that arise from the mitigating measure, the EEOC said, you can''t consider that when assessing whether the person is substantially limited or not. So for instance, if somebody takes medication for their mental illness, and a manifestation is a side affect of making them sleepy, that side effect can be determined--can be used in determining whether they''re substantially limited in major life activity like sleeping. The other thing that EEOC said is that if there are benefits from mitigating measures, that those even though they can''t be considered when determining whether somebody''s substantially limited and determining the definition of disability, those benefits of the mitigating measure can and should be used in considering whether they are qualified and can perform the essential job functions. So, again, there''s a differentiation. You can use mitigating measures when determining whether somebody is qualified, able to do the job functions, but not when determining whether they have a disability or eligible under the ADA. Slide 24. The Congress also made a major change, I think, with respect to regarded as--regarded as is one of the 3 prongs in the definition of disability. And under the original ADA, in order to prove that prong, you had to show that you were substantially limited that the defended procedure to be substantially limited in a particular major life activity. And this turned out to be a very difficult thing for people with disabilities to prove in court. Because they''re having to get in mind--inside the mind of the employer. And employers will say, well, I didn''t perceive them or regard them as being substantially limited in this particular major life activity and they would escape liability that way. And so Congress said, this is just wrong, this isn''t what we intended. And so now they say that the regarded as prong will apply whether or not the impairment limits or is perceived to limit a major life activity. So, thats no--whether somebody is substantially limited on major life activity is no longer part of the analysis if somebody is proceeding under the regarded as prong. Congress did make clear though that people who are only proceeding under the regarded as prong are not entitled to reasonable accommodation. The courts will split on that issue. And so Congress cleared that up. The other thing that Congress talked about with respect to regarded as is that, and I alluded to this earlier, is that impairments that are both transitory, meaning lasting or expected to last for 6 months or less, and minor cannot be the basis for regarded as claim. Slide 25. With respect to the other prong that we haven''t referenced record of disability or record of a substantial limitation of a major of activity, there are no changes in the ADA Amendments Act. And what the EEOC did in their proposed regulations was just to make clear that, again, like the other prongs, this should be construed broadly. And they also made clear that if the record that is being looked at is based on a misclassification like a misdiagnosis, that can be enough for a record claim. And the EEOC also took the position that a record of disability, unlike the regarded as prong that I just talked about, that the record of can support a failure to accommodate claim. The EEOC in that question and answer document that I mentioned before also stated that the employer doesn''t need to rely upon the actual written record of disability when you''re at the stage of proving whether the person has a disability based on a record of. You only look at whether the employer relied upon the actual written record of disability when you get to the point of whether there''s discrimination. But when you''re just determining whether the person has a record of disability to be covered on the ADA, you don''t have to show that the employer relied upon that written record. A couple more things and then we''ll open up for questions. The Congress made clear in the ADA Amendments Act that federal agencies had previously then asked to interpret and enforce the ADA like the EEOC and the Department of Justice and the Department of Transportation did have authority to interpret the definition of disability. Justice O''Connor when she was rendering the Sutton decision had said that people who--people who, excuse me, the agencies had not been given the authority to interpret the definition of disability because that was not within what Congress had expressly said. So, for instance, Congress had said the EEOC should be interpreting Title 1, and Justice O''Connor took the position that because the definition of disability was not within Title 1 that the EEOC did not have authority to do that. And Congress said, no, that''s not correct, we want the EEOC to interpret the definition of disability as well as the employment provisions under Title 1, so that makes that clear. And I think that what that will do is that will give courts more capacity and give them more direction to follow what the EEOC has said now that Congress has made that very clear. The Congress also said that the ADA and the Rehabilitation Act of 1973 shall use the same definition of disability. So, if somebody is not covered under the ADA because maybe they work for federal agency but they are covered under Rehabilitation Act, the same analysis for the definition of disability for the ADA should be applied to the Rehabilitation Act, so that was helpful in alleviating any confusion there. And then the last thing that''s come up is the ADA Amendments Act and whether it applies retroactively meaning if there was alleged discrimination prior to the effective date of January 1st, 2009, our employers then are held responsible for the standards of the ADA Amendments Act. And that''s not--the text of the ADA Amendments Act doesn''t give us any information on that. It doesn''t say that it was intended to apply retroactively or not. The EEOC in their question and answers I alluded to before said that it does not apply retroactively and Brian will be talking about some of the case law on that issue during his session. But with that, why don''t we see if there are any brief questions, but we want to make sure we get to the litigation section. So a few questions, you can type it in the text box, or if you have the capacity to use a microphone, you can press Control and ask your question. I just wanted to note that Alan has typed into the text box that the DSM IV listing may be relevant for psychiatric impairments which is very helpful. Thanks, Alan. Well, seeing that there are no immediate questions, why don''t we turn it over to Brian so he can get to the litigation issues and then he''ll go through all that and will also have some time left for questions both on any questions people have about the text of the ADA, the proposed regulations, and then the litigation that Brian is going to discuss. So with that, I''ll turn it over to Brian.
Thanks, Barry. Yeah, what I want to try and do is 3 things depending on time. The first is to sort of describe the current case law that exists under the ADAAA. The second is to make some suggestions for litigation under the ADAAA. And finally, to talk about where the expectation is that the fight will be in cases if it is not on the issue of disability as it has so often been before the ADAAA. So preliminary, I checked this morning and I could find somewhere upwards of 425 cases citing the ADAAA. But that is somewhat misleading because most of them talked about the issue of retroactivity or simply "what the statute says itself" and therefore they''re not adding much in the way of analysis. But there are some that are helpful and we''re going to be talking about those. So let''s go to the next slide, 29. First on this issue of the broadened definition of disability, rejecting Toyota motors demanding standard language and making sure that the terminology and the definition is interpreted as broadly as possible. We see that the case law does reflect that fact. There are 3 cases cited on this slide that make that point. I''ve done, as of a couple of months ago, a few months ago, probably, I''ve sort of surveyed what the take from the courts who have looked at these cases on how significant the changes in the ADAAA are on the definition of disability. And as you might guess, there''s a lot of cases talking about that, the changes are described as significant by the Ninths and Sixths Circuits and lots of other district courts substantial by the Tenth Circuit and lots of other district courts an important changes by the Third Circuit and lots of other district courts. So, the courts also say it broadens the scope of the ADA. It expands the class of people protected under the ADA, raises serious questions as to the continued viability of earlier case law et cetera, et cetera, considering more liberal significant amendment. So that''s just to give you a flavor that the courts are recognizing this is a big change in the definition of disability and the expansion of coverage. Let''s go to the next slide. This--the case here is Gil versus Vorder. This is slide 30, Vortex rather. And here, this was a 12(b)(6) motion, that is it''s decided on a motion to dismiss, so not on the summary judgment or final determination we''re really getting to the merits of the case, but the court is trying to figure out if this person might have a tolorable claim to disability under the ADA Amendments Act. And the court--and the person involved here or the plaintiff had monocular vision. He had injured--had an injury on the job and was blind in one eye. And the court said although the plaintiff might have done a better job providing details of the nature of the substantial limitation in seeing and working that he alleged, still there was enough factual information in the complaint that they believed under the ADAAA standard, the person was going to have a disability. In part, they relied on language in a pre-ADAAA Supreme Court case about monocular vision that while not helpful to the plaintiff made the point that many people with monocular vision will meet the standard of definition under the old ADA. So clearly, the court''s thinking is if you could meet it under the old ADA, surely you can meet it under the new much broader standard. Let''s go to the next slide. On the issue of substantial limitation as we saw in Barry''s summary, the court--what Congress did here was they made it clear what they didn''t like before. They didn''t like the restrictive standard in Toyota Motor. They didn''t like the ADA''s significant limitation standard. They made it clear that substantial limitation is something less than that. But they didn''t expressly define it. They did talk about it. They have some rules construction. And the NPRM from the EEOC has a lot more guidance. So we''re still trying to figure out things. The Franchi case, the first one on this slide, again, a 12(b)(6) motion to dismiss. And the court cites that the mandate from Congress for a broad construction, the mandate from Congress that the primary focus of cases now should not be on disability in coverage but should be on discrimination. And in light of that, and the facts that were alleged in the complaint which are described on the slide, found a colorable argument to a substantial limitation in eating. The other slide mentioned here--or the other case mentioned here, Carmona, was decided under the old ADA definition of disability, so pre-ADAAA. And it did actually find a sufficient information--sufficient basis for disability even under the old law. But what they pointed out was that under the new law, when you have a condition like the psoriatic arthritis, in this case, that is episodic, that sort of flares and recedes from time to time, it will be much easier to establish disability. So, let''s go to the next slide. And this is about the new definition of major life activities. So what--what we see from the Horgan case is that the courts are following the new statutory mandate that defines major life activities to include functions of bodily systems. There actually was some case law that went that way prior to the ADAAA, but there was case law that didn''t like that approach part of the ADAAA. Now, courts are required to recognize those kinds of major life activities, and they do. So in the Horgan case, this was a person, again, motion to dismiss 12(b)(6), this was a person with HIV. And the courts said that major life activities include these bodily functions, and one of those is function of the immune system, pointed out that there is this what''s referred to as the (j)(5) list of impairments that will consistently meet the definition of disability in the NPRM that Barry talked about. And said basically in light of that and the mandate not to require extensive analysis of disability, then there''s certainly a sufficient reason to believe that HIV is going to be a disability to get pass 12(b)(6). There''s another case not on the slides that I want to mention here, it''s called Hoffman versus Carefirst out in the Northern District of Indiana from August 31 of 2010. And that case involved stage 3 renal cancer. And the court again said that functioning of the immune system and normal cell growth are recognized major life activities now, and in the act of state the cancer does implicate that, so it did not have difficulty determining. And that actually was on summary judgment. So, this is a substantive decision, one of the very first that says the cancer was sufficient to establish a disability. Let''s go to the next slide. Another example of courts applying the expanded list of major life activities, these of the more traditional pre-ADAAA type, the court recognized that there had been some lack of clarity on whether sleeping and thinking were major life activities, but no more. That in the future, under the ADAAA, those clearly are major life activities. The green portion of the slide, the last two-thirds of it on expectation, this is not from the Verhoff case, but this is our own view. What we expect is there will be less litigation over the issue of disability and more litigation on the other main parts of an ADA case, which are typically whether the person has qualified individual disability, whether the person presents a direct threat, and the defense to accommodation or modification of policy outside of the employment context which is called "undue hardship" in employment, "undue burden" outside of employment. So we expect that. We expect more deference to the EEOC regulations because of what Barry said, the statute now expressly gives EEOC the authority to write regulations on this new definition of disability. And traditionally, courts have given quite a bit of deference to regulatory statements of the enforcing agency when there''s an explicit grant of rule making authority as there is now. And then there may be a fight over major life activities and how far they go. Some of the ones mentioned here are sexual relations, driving and commuting. I just say that the courts were actually fairly uniform even before the ADAAA finding sexual relations to be a major life activity. The issue in many of those cases was substantial limitation. Driving and commuting were a much more difficult to predict major life activities. Many courts found them not to be major life activities. Oftentimes the way to use the fact that the impairment limited someone in driving or commuting was through the major life activity of working. That''s still a possibility. And in fact in the NPRM, the EEOC does not say that driving and commuting are not major life activities but does make the point that someone who can''t drive or has commuting problems may well be substantially limited in working. Next slide. The other issue that is changed under the ADAAA is mitigating measures. And we now look at the condition without regard to the mitigating measures. And the Rohr case is instructive. This was actually decided pre-ADAAA, but the court does go into a fairly extensive analysis of what the ADAAA would do. In this case, it was a client with diabetes, how the--how things would change and uses the clarity with which someone with diabetes would be protected under the ADAAA to support its belief that even under the old ADA definition, the person does have a disability. So, the Rohr case is an important one to look at to get a sense of how it''s supposed to be analyzed. Next slide. Too some other cases giving examples of the looking at the impairment without regard to mitigating measures, we have the Verhoff case. So if someone has a sleep impairment, we''re going to look at them without their sleep medication. Someone who has a hearing impairment, we''re going to look at them without regard to hearing aids they might use. The Burlington Northern without regard to prosthetics. And medication, again, in the Long Island Railroad case. And then there is the Solemic case which makes the point perhaps not as clearly as it might, but by in footnote makes the point that side effects are still going to be relevant. So, negative side effects are. So we don''t look at mitigating measures but we do look at the negative side effects of mitigating measures when we''re trying to asses a substantial limitation. That was, again, Solemic is a pre-ADAAA case decided under the pre-ADA Amendments Act definition, but useful to make that point. The next slide. Again, on the issue of "regarded as", the courts are clear on what a big change this is. And this really is a very big change. The case law that''s cited on this slide sort of repeats the analysis that Barry walked us through from the statute and from the NPRM about how, you know, what kind of change there is. But basically, the key point for regarded as claims is the concept of major life activity and the concept of substantial limitation have no place in the analysis anymore. It doesn''t matter whether there''s a major life activity that''s impacted. It doesn''t matter whether the impact is substantially limiting or not. It''s a completely different analysis that focuses just on the impairment, the diagnosis. And if it''s going to last more than 6 months, you''re done. That''s it for regarded as. So the case law makes this clear. There''s another case besides what was cited on this slide. George versus TJX out of Eastern District of New York that makes the same point that the Brook''s case does. It does greatly expands the class of people under regarded as. The next slide, again, Barry mentioned what''s called the (j)(5) list for the part of 1630.2 in the draft regulate--or the proposed regulations that lists these conditions that will normally meet the definition of disability. And that is used in the Horgan case we''ve already talked about, an HIV case. So they do rely on the NPRM to support their view that under the ADAAA, HIV is going to be a disability. Another case not cited on this slide, again, is the Hoffman case I mentioned earlier out of Northern District of Indiana decided at summary judgment. And there the court again says cancer is on that (j)(5) list and that gives the court more confidence that it is in fact a disability. So decided, you know, at summary judgment standard that it--that the employer is not going to prevail on disability anymore that standard. Another interesting point from that Hoffman case is that the employer made the argument that, okay, the ADAAA kicks in January 1 of ''09, but the draft regulations weren''t even published until September of ''09. So for anything that took place between January and September, we shouldn''t look at those draft regulations. And the court says, no, you''re missing the point, the ADA applies beginning January 1. The NPRM and the regulations when they are finalized just help us understand what is the ADAAA''s mandate and analysis. And it''s not a question of retroactive application of the regulations, they just help understand what the statute is. So I think that''s a useful case there. Next slide. That case, the Franchi case cited on the next slide which is 38 simply makes the point that Barry mentioned earlier which is these changes to the ADAAA also apply to the Rehabilitation Act. And there are several cases that make that point a typically say the ADAAA applies to the Rehab Act but we''re not going to apply it retroactively, so retroactively, so we''re not going to consider it further. There''s two Ellis cases one out of the District of Columbia and one out of Wisconsin that make that point that Rehab Act is covered. The next slide raises the question, doesn''t answer the question, but raises the question of the ADAAA''s effect on state law. And I think this slide, 39, and the slide that follows, 40, sort of cover the field, some states like Texas have expressly amended their statute to track the ADAAA but even the--and that didn''t come into effect until September of ''09, so there this gap between January and September, but state laws suggest that it isn''t--it isn''t clear that the ADAAA itself didn''t automatically amend state law, because state law says it is designed to conform to the ADA as many state laws do. So there are some open questions here. Several courts have written assuming that the ADAAA changes will apply when applying a substantially similar state law opinion like that out of New York, like that out of Tennessee. Okay. So let''s go to the next slide which is slide 41. I might sort of talk about 40 mixed together with 39. So, we''ll go to 41,"Effect of the Pleading Standard" is the title. And we''ve talked somewhat about some 12(b)(6) motion to dismiss cases, and those are ones in which they''re testing the plead, the plaintiff''s pleadings, and how this new broader version has helped plaintiffs withstand challenges to the pleadings. But I would make a few observations here. The first is that after the Supreme Court''s decision recently in Iqbal and Trombly, the focus on the pleadings is much greater than it ever use to be. And therefore, I think it probably is important to try to give the court a heads up about the changes in the ADAAA. For example, I''ve seen at least a couple of cases that seemed pretty clear that they should have been decided under the ADAAA but no one made the argument. And in one case, the court said it might have applied but it wasn''t argued, therefore, we''re not going to consider it. So, one obvious lesson from that is to plead specifically the ADAAA. Another thing I think that''s highlighted in this--in the last case on this slide, the Broderick case. What the court there says is the plaintiff must still allege the major life activities that were substantially limited. That''s actually not true under a regarded as case under the ADAAA. So, it''s important to let the court know if yours is a regarded as case that there is no need to prove anything about major life activities or substantial limitation in a regarded as case. If it''s not a regarded as case, then those issues may be important. And we saw the other case that I mentioned earlier where the court found a sufficient showing of disabilities of a pleading''s challenge, but did suggest that there could have been more help to the court on understanding what the limitations in the major life activities were. So again, I think it is important to help the court understand that this is an ADAAA case if it is, that the law has changed, what way it''s changed, and then track those changes. Let''s go on to the next slide which is 42. And this is the issue of retroactivity. So, we saw that there''s no expressed language about that in the statute, but that the EEOC material that Barry cited reflects that it is not retroactive. What we, and basically, the vast majority of cases decide that it is not retroactive. There are now reported decisions saying that from the First, Fifth, Sixth, Seventh, Eight, Ninth, Tenth and DC Circuits and lots of district court cases and a couple of unreported circuit level cases from other circuits. So that is the--that is the point of 95 percent of the ADAAA cases that are out there so far. And as a general proposition, that''s going to be hard to challenge now, but let''s go to the next slide. There is a case that goes a different way. And I think--actually a couple of them. And we''ve got slides on them. And I think that''s going to be--it''s making an important point. So in slide 43, United States to Jenkins. Jenkins is out of the Sixth Circuit. It''s an unreported case. There is a subsequent reported case saying no retroactivity, it doesn''t mention Jenkins at all. But there are something really different about Jenkins. And Jenkins, the person was seeking an accommodation for a licensing exam that was coming up in the future. So what the plaintiff was asking was whether they could get an order requiring the accommodations for a future exam. They weren''t asking for damages or something that might have happen in the past, they were looking to the future. And the court goes in to a very detailed analysis tracking the Supreme Court case law in this and all these courts track, and saying, in this context, it does apply. It did apply when it became effective which was during the appeal, in this case, and kicked it back down to the trial court to make a new determination in light of the new disability standard. The next slide is similar. This is an education--in the education context. And the person was seeking an order compelling the defendants to convene a meeting to determine eligibility for 504 services from the public school. So again, what the plaintiff is looking for is some relief in the future. They wanted order that something''s going to happen in the future. And the court says that, you know, because of that fact, we are going to apply the ADAAA and the changes it makes to the Rehab Act as well, the Section 504 it was under. We''re going to apply that in this case. The next slide though shows the flip side. And virtually, all of these are--or I think actually, all of these, are in the employment context. And what the court is saying here is there may be request for perspective injunctive relief. But what''s really being challenged, and what the damage portion and the back pay portion of the case is talking about is something that happened pre-January 1 of ''09, before the ADAAA applied. And so, we are not going to follow Jenkins in those cases. So Nyrop cited there, which is--since then, I think, then affirmed on appeal in the Henegar case from the Tenth Circuit, make that point. So there is, as Jenkins argument that is important. It probably doesn''t work too well in the employment context, but it may well work in another context where the relief sought is something that''s going to happen in the future. The next--the bottom half of this slide 45 is making a little bit different point, and that is that even if the ADAAA does not apply because the acts complained of took place before ''09, it may be relevant to determine the issue of disability under the old statute. Now, it''s not going to be relevant if you''re having to buck settled precedent under the old statute. So you''re not going to be able to use this argument to say we shouldn''t look at mitigating measures, because--and Sutton settled that issue for the old ADA. But if you''re looking at is renal functioning, a major like activity, in an old ADA case, there are several courts that said it was, even under the old ADA. We could now use the new ADA to see that Congress actually expected that that kind of thing would be covered as a major life activity. So it can be used in that way as sort of explanation. The next slide, let''s see--yeah. I''m not going to say anything about the next slide. So let''s skip to slide 47. So the point of slide 47 is that disability should now be relatively easy to establish. So what then will be the fight in these cases? And the presumption is, and I hear this from presenters on both sides of the bar, that the issue is likely not to be disability that often. And instead, it will be qualified, including in the employment context what are the essential job functions, direct threat, and the defense to accommodation, which is undue hardship. So that''s what we expect more of in the future. Let me go to the next slide, some more thoughts on what we might look for in the future. The first bullet point says that there may be challenges to the EEOC''s interpretations in the NPRM. And there certainly may be. I would just note that the few cases that have cited it so far have all cited it favorably in and in support. So we''ll see if that changes. The second bullet point about whether there''ll be further litigation over these unlisted but important and common activities, again, sexual relations was fairly well-established before. So I think if it was a major life activity before, it''s gotta be one under the broad construction language now. Driving and commuting may well be major life activities now under the broadened test that we applied at each of the elements of the definition. But we may also be able to use those to establish a substantial limitation in working. And the last bullet point about, for example, the surgical intervention addition to the list of mitigating measures that is in the NPRM. I would just point out that there is--there are several cases that found that surgical intervention were mitigating measures under the old ADA. So it seems that that''s a pretty safe bet that they are under the new. So, let''s see. I think let me talk for just a few more minutes and then stop and take questions, ''cause I know we want to set aside some time for questions. Let me just talk--let me just sort of give a refresher overview about--so if it''s not disability if the case is about, what is it going to be about? We talked about qualified. In the employment, that often means what are the essential job functions? And the EEOC has not--has a lot of both regulatory statements and regulatory guidance on how to determine if a function is essential and what that means. None of that has changed by the ADAAA. And so, that''s all useful, and there are various factors that you can look at, how often is the function done, are other people required do it, was the person required to do it in the past, are there other people available to do it, et cetera, et cetera, lots of factors. So all that that''s in the regulations already, and most of that is at 29 CFR 1630.2(n), as in Nancy, all that material will be useful. Essential job function is typically seen as a fact issue, because it''s typical fact specific, and therefore, shouldn''t be decided at summary judgment in many cases. The employer view of what the essential job functions are gets some deference, but is not dispositive. And you see some case--some dicta in cases that kind of confuses that. So the difference between production standards, for example, that the employer adopts, if the employer says we want our secretaries to type blank words per minute, the courts are typically not going to try to second guess whether that''s an appropriate standard, as long as it''s uniformly applied and relates to the work being done. But as to whether the person has to do typing as part of their job, or has--that''s going to be a different question. And the fact that it is listed on the job description, for example, is not dispositive. There are a lot of things to look at beyond that. The flip side of that is that the common advice now after the ADAAA is, employers, get your job descriptions in order, because they will be looked at. The fact that something is not on there suggests that it isn''t essential. Don''t say everything on here is essential ''cause that doesn''t work either, ''cause no doubt, there are things on there that are not. But this is likely to be more of a focus. So let''s remind ourselves what the standards are and get our houses in order. The act defines reasonable accommodations, but it''s a non-exhaustive list. The Barnett case from the Supreme Court tells us that the showing of reasonableness is not a very difficult one for the plaintiff. It''s just sort of reasonable in the cases, and then it''s up to the employer to prove undue hardship if there is one. The flexible interactive process has been there all along, not changed, but maybe in more important focus. So again, let''s make sure that folks are trained on that obligation do a good job of it. So I think I''m going to stop there, reserving about 20 minutes at least at this point for questions. And I''m going to pass it back to you, Barry.
Great. Thanks, Brian. That was great to get all that information at such a great finger on the pulse of what''s going on. If we go to slide 50, we have a listing of some resources for you, the National Network of ADA Centers, the EEOC website link is there, our Equip for Quality''s link as well as the Job Accommodation Network which if you haven''t used that before and youre an employer, you should definitely check that out because they have a lot of practical information to help you when you''re asked to consider reasonable accommodations for your employees. Just to finish up the last slides for where we''re going, and then we''ll open up for questions is as Robin alluded to, this is the last of this year''s series for webinar, but we do have another series of webinars that we''ll be starting on November, and the first one we''re doing is on November 10th of this year, and it Service Animals and the ADA, and that is really an issue that arises in a lot of different context. It can arise in the employment context. It can arise in the business context with respect to customers. It can arise in just a number of settings, including even in schools. And so, there have been some new Department of Justice regulations that have come out that will, I think, provide some additional issues for discussion, as well as a lot of case laws out there. So that will be the topic there. And then, on the website, where you get the information about the legal webinars are the listings of the other five sessions that we''ll be doing. And a session we''re going to do a year from now as kind of followup on what Brian just talked about which is litigation of landscape 3 years after the passage of the ADA Amendments Act, and see if some of the things that we''ve talked about today and predictions we made really come true. And see how the courts are looking at issues outside of the definitions of disability and whether they do follow Congress and EEOC''s view on definition of disability in the wake of the ADAAA. So, and in the last slide to show is just, as Robin alluded to, there''s going to be an online evaluation that''s e-mailed to you. Here''s the link, and if you could just provide your input on the session today to give us feedback is always appreciated. So, with that, we''ll open up for questions. People can type in your question into the chat box. And then if you do have a microphone hooked into your computer, you can also press the control key and give us your question orally. Okay. So far we''ve--there''s a--we got a question - will the new regulations offer more people with disabilities being certified for paratransit? The regulations that we''re talking about with respect to the ADA Amendments Act do not deal with the issue of paratransit.
This is Brian. Yeah, that''s right. The regulations we''ve talked about so far are the draft or proposed regulations from the EEOC that relate to employment, but the DOJ will be issuing their own set presumably as will the DOT. And one of the reasons I think they have held off is it is intended that all the regulations be consistent. So, I expect to see a set that will be consistent with the EEOC''s final regulations, at least. And I think that it may well mean that more people are certified for paratransit but remember a lot of the changes relate to the question of coverage but not the question--that is person with disability, but not the question of policy modification, accommodation, and that kind of thing. So, if a person because of mitigating measures does not need paratransit, they may not be entitled to it under whatever regulations are upcoming. On the other hand, they may be a person with the disability.
The next question we have says, I''d had issues with obtaining medical information and also being challenged by the employee on the correctness of the medical--we lost the questionnaire--on the correctness of the medical examination information. How does that play in court? Well, that, with respect to what we talked about today with the ADA Amendments Act, it doesn''t change the information you can obtain. Usually this will arise in the context of when there are questions about direct threat or needing a reasonable accommodation. And as Brian alluded to, those are probably going to be issues that are litigated more than they have in the past but the ADA Amendments Act doesn''t really change the law or the court interpretations on those issues.
Yeah, this is Brian. I agree with Barry that that''s probably not changed very much. So, the question is still going to be do they have a right to ask for the additional information, is the employee cooperating within appropriate request, and is the employee providing reasonable information that the employer is not accepting. All that I suspect doesn''t change the analysis. That doesn''t change too much under the ADAAA.
Brian, Robin has posted a question I''d be interested in getting your perspective on this because I think you''ve been doing a lot of discussions with employers. It says, what advice do you have for employers and what they should do now, if anything, in terms of preparing to address potential increase in identification as disabled and increase request for accommodation as a result to the implementation of the ADA Amendments Act and more individuals becoming aware of it. Any thoughts on that? Brian East: Yeah, I think and I have presented on several panels that have management side or employer side representatives or experts on them, so I get to hear what they are telling their clients as well. And I think the general rule for employers is don''t assume that something is not a disability. So, before, if you read that a person with diabetes or epilepsy or whatever doesn''t have a disability and therefore no accommodations have to be extended, that may well be not true anymore. So, and in fact in those situations, I would say is not true anymore. So I think the key is to assume, except in the most obvious examples of person requesting an accommodation for the common cold, where we''ve already said that EEOC says that''s not even an impairment, much less a substantial limitation of major life activity, or pregnancy without complications, again, not a disability. So an extreme case like that, it may be clear enough. But in general, I think it''s--the safer courses for the employer, particularly at the stage of dealing with the employee to assume the person is a person with a disability, and therefore, entitled to request accommodation. So shift your focus from, you know, that didn''t sound like a disability to me, to be flexible, interactive process; what is it they''re asking for, are there other things that would work, do you need to ask the Job Accommodation Network for other ideas or bring in an expert to help you think of other ideas, go through that process, document that process, provide an accommodation if it is possible, and just know that in the end, if it doesn''t work out and they''re--and it goes to court, you may well not win on disability. So the key is to show the court that you engaged in the flexible interactive process, you did make reasonable efforts to do it, and, you know, so I think that''s the key now, assume the person has a disability and is entitled to an accommodation theoretically, and get into that let''s try and work it out mindset.
Thanks, Brian. Just a couple other thoughts. I mean, and Alan alludes to this in the chat box is that this is probably a good idea for a time for people to get more training on the ADA that a lot of the old training that''s out there just isn''t--as accurate or relevant anymore because of what''s happened here, particularly on regarded as and all the definition of disability issues. And I think the other thing is--as Brian alluded to during the presentation, is that it''s time to look at other issues and make sure that your job descriptions are up to date and address the issues that Brian talked about what is an essential function and what isn''t, and a lot of times, the job descriptions that we''ve seen over the years are ones that were really perfunctory and didn''t really match what people were actually doing in the workplace. And it appears that that is going to be an issue that the courts are going to be grappling with more, and there is a lot of information out there already. But I think because people were not getting past the stage of definition of disability in the cases that maybe employers didn''t spend as much time as they needed to on that issue, and I think it''s time if they haven''t recently done so, to really pull those out and really think about, not only the Reasonable Accommodation Policy as Brian just talked about, but also, their job descriptions and what''s considered such a function. Because as we know, if it''s not an essential function, that''s something employers are going to be asked to accommodate, as long as there''s not an undue hardships. So, a lot of things there. Okay. We''ve got another question here from Robin. Do you have an opinion on whether or not the use of the list of presumptive disability is useful or potentially problematic if the disability is not on that list, and are there view steps that employer should use to review whether or not they''re covered? Brian, do you want to take the first crack at that?
Yeah. I think it is useful. Again, it''s not an effort to establish per se disabilities. But it''s attempting to take all the commands from Congress, that it''s not to be the central focus, that it''s to be broadly construed, that we look at it in the active state, that it is done without mitigating measures. And when you do all that, there''s only one way typically that a case involving epilepsy or diabetes comes out; just because of the medicine, just because of the medical information that we have. If you are not taking insulin, and you are required to, we know what''s going to happen to that person, and it will be a disability and death pretty quickly. So it''s just--it''s I think a shorthand to help us know what are the easy cases we shouldn''t even be messing with. And by we, I mean the employer, the courts, et cetera. Now, if I had one of those cases in court as a plaintiff, I would still mess with it. I would still put on the evidence into all those little boxes and all those commands. But it is--you know, I do think that it is useful in that sense. As to the--and that is assuming it ends up in the final regulations. As to the conditions that are not on that presumed list, again, I think for employers in trying to figure out whether something or not is covered, I think the safer course is to assume it is covered, because they''re typically providing this information for some reason, typically for an accommodation request. The employee is typically doing it for that reason. And so, you know, presume that the person could establish it if it got to court, and therefore, engage in the flexible interactive process, document things, do what you can. I think that''s the safer course. Because you know, there''s no way to know if a disability is not on that list, whether something will ultimately be considered covered or not. I could certainly make a judgment based on the condition, and based on these directives from Congress and from the EEOC about how to analyze it. But there''s no way to know until the judge decides it one day. So I think because it is broad, and because many people will qualify that it didn''t before, again, I think the safer course is to air on the side of coverage, doesn''t mean you can''t discipline for misconduct, doesn''t mean you have to grant the accommodation requested, et cetera, et cetera. But don''t focus on, is it on this list or that list. At least, that''s my take.
I would agree with that. And I think, you know, some employers have actually been doing that even before the ADA Amendments Act, and said, you know, we don''t want to spend time figuring out whether it''s a disability or not. We just want to work to accommodate people in the workplace so they could be productive and effective in their job. And so, I think that''s a--that this is just maybe extending that to employers who hadn''t necessarily taken that approach. Another question from Robin. Litigation on the regarded as prong was very limited pre-ADA Amendments Act, do you foresee an increase in this area, given the change and how it is defined now? Any advice for employers regarding this problem? Brian?
Yeah. I certainly foresee an increase in this area. And again, for employees and their representatives in court, I think this is the first thing to consider, the first thing to plead, because it is such a broad standard. And there certainly was a lot of litigation under regarded as, but as the questionnaire suggests, it was difficult to qualify because it was getting into the employer''s mind about what they thought the substantialness of the limitation was. And all that''s out the window now. We don''t need to get into the employer''s mind typically, unless they''re misperceiving someone has a diagnosis they don''t even have. But--so I think there is a big change. Advice for employers regarding this prong, the important thing for employers is that if all you can establish as regarded as you don''t get an accommodation. So if someone--if you''re thinking, well, this person, you know, probably is covered under regarded as, don''t I have to accommodate them? No, you don''t. But if they are also covered under record of or present disability, prong 1 and prong 2 of the definition, then you do. So I don''t know if that helps at all or not.
Yeah. I think that''s right. And I think it''s--it will be interesting to see how this plays out because I think a lot of times people were going to prong 3, the regarded as, because they''re having such a hard time with the actual disability, and then they ultimately had a hard time with the third prong. But now that actual present disability should be easy, I think people will end up pleading, you know, all 3 prongs in many cases, but it will be interesting to see how it all plays out. We do have a couple more questions we want to try to get in before the end of the session. One from the--it looks like from JAN--I don''t know if that''s Job Accommodation Network or not--but it says, what are your thoughts about how long an impairment must last to be a disability under prongs 1 or 2? For example, what if someone has a severe infection that lasts several months, but is ultimately completely cured? And as I alluded to, and anxious to get Brian''s thoughts on this as well, but as I alluded to, what the EEOC has said is that this limitation on the 6 months really was limited to the regarded as prong. And so, 1 and 2 could be something is much less under 6 months if it is something that is significant and severe. And I think, given that the EEOC and Congress talked about cases that are in remission, and you look at it when it is in its active state, I think gives also a reason to think that impairments that are lasting under 6 months that are substantially limiting would be covered under the actual and record of prong. Brian, your thoughts?
Yeah, I agree with that. I think less than 6 months is certainly possible now for a prong 1 and prong 2 case. And I wanted to mention, at least, something about--you had pointed out Barry in your presentation that condition, manner, and duration was in the original EEOC ADA definitional regs and is not in the NPRM, and there''s an explanation that the EEOC has given for that. It''s interesting to me because there was criticism of that move to some extent from both the plaintiff and the defense side, from both the employee bar and the employer bar. And I think what the plaintiff said is certainly the way courts interpreted it where if you didn''t have a long enough duration, you were out. If you do--if it wasn''t severe enough, you were out. And it wasn''t this sort of flexible, if you have a shorter duration but more serious, that was enough. You did see that occasionally, but oftentimes not. And I think what the EEOC is saying is it''s not that kind of rigid analysis, one of--one of these prongs will be enough, but it may come back in, in the final regulations. We''ll see whether or not it comes back in as elements or whether it comes back in simply as among the things you can look at but it''s not any kind of rigid test. And the reason that they were taken out was the rigidity with which courts dealt with it. So I don''t know the answer to how long to be a disability under prong 1 or prong 2, but unless the NPRM proposed regulations changed drastically, it''s something less than 6 months if it is serious as was described in this hypothetical.
Great thanks, Brian. There''s one more question. It looks like Alan might have already answered it but let me just read it for people. It''s from Winnie. It says, "What if a person has a joint problem that requires hospitalization like a hip or knee replacement or other type of operation, at what point is this considered disability and be offered workplace accommodations?" And Alan''s response was once the impairment becomes substantially limited, it''ll be considered disability. This doesn''t need to relate to medical treatment, for example, if substantially limits walking, sleeping, and usually an employee needs to request the accommodation rather than having it offered by the employer. So, and then when he asked the followup question. So, is it determined by when the employee ask for accommodations and then covers--covers all what we have until able-bodied again? So, yeah, as I think Alan''s alluding to, it really gets triggered when the employer becomes aware typically that''s through the employee asking. As we all know, it doesn''t necessarily had to be the employee themselves who ask, sometimes it could be a family member. Or if the employer becomes aware that the person might need a reasonable accommodation, then that may be a situation as well. Brian, did you have any additional thoughts before we conclude?
No, not on that one. I''m not sure I completely follow the exchange but I do think that, first of all, it''s unclear to me whether hip replacement or kmee replacement is one of these things that fully resolves or cures the issue however the EEOC guidance issued it. But it does seem like under the facts of the scenario the person has not yet had the surgery or if they have, they''re still in rehab mode. And so, I will--again, if I were the employer, I would presume that person has a disability and maybe someday they won''t. Again, I''m not sure I want to box myself into that position as the employer at the outset. But at this point where the person is out and needs leave, for example, or a reasonable period of light duty for examples of accommodation, I would tend to think they are positioned in appropriately to request that now whether--whether it is reasonable in the context, whether it''s an undue hardship et cetera, et cetera, those are all still open questions, but that''s my thought.
Thanks, Brian. Well, Robin, I think we''re done with the questions, and we''re at the bottom of the hour, so I''ll turn it back over to you. But if people have questions, you can maybe direct them on how they could follow-up with that.
Great, thank you very much. And I want to thank Brian for your time today and participating in this program as well as Barry and Alan who have championed this program for a couple of years now and have been a great addition to the process, so we want to thank all of you for your participation today. Thank all of you that participated in the Q&A section as well. I think that trying to operationalize these things are put them into "real" helps everyone understand these concepts better. We do invite you again to take a look at the series for 2010 to 2011. You can do that at the website www.ada-audio.org and just click on the Legal Webinar Series, and you''ll get to see the full schedule and go ahead and register and participate. Please let your friends and others know about the program as well as we try to continuously spread the word about the availability of these sessions. So, thank you everyone. And you will be receiving a follow-up email with the link for the evaluation if you did not get it already. And we look forward to hearing from you and seeing you again soon. Thank you very much. And as I said, this program will also be archived probably within 7 to 10 business days and you''ll receive an e-mail notifying you when the archive is available as well. Thank you very much everyone and you can disconnect by just closing your browser. Thank you.