Good afternoon and welcome to the final session in the 2010-2011 Americans with Disabilities Act (ADA) Legal Webinar series. Today''s session, the Litigation Landscape after the ADA Amendments Act (ADAAA), my name is Peter Berg, I am the Project Coordinator with the Great Lakes ADA Center. Sessions in the 2011 and 2012 season will be posted to the ADA Legal Webinar series in the upcoming weeks, so please visit the website to get information about sessions in next year''s series. For those of you wishing to access the captioning feature within the Elluminate system for today''s session, click on the captioning icon at the top of the page or hit control F8 and that will open the captioning window and allow you to sight the window to meet your needs. For those of you participating using a screen reader, you can open up the activity window by doing the keystroke function control slash and that will allow you to follow along with today''s PowerPoint presentation. To exit the activity window and come back to the main Elluminate window, simply hit the keystroke function Alt F4 and that will close the activity window. I will now turn today''s session, The Litigation Landscape after the ADAAA over today''s presenters. With us today are Barry Taylor, Director of Legal Services with Equip for Equality and Attorney Brian East with Advocacy, Inc. Barry and Brian, go ahead.
Thank you Peter. This is Barry Taylor. I am with Equip for Equality which is a protection advocacy agency for the state of Illinois and I am being joined by Brian East who is a senior attorney with Disability Rights, Texas formally known as Advocacy, Inc. which is the protection advocacy agency for the state of Texas. Those of you who are Illinois attorneys who are listening to this session should contact me after you have listened to this session for continuing legal education credit and you can contact me at barryt@equipforequality.org. So we did a similar webinar back in September of 2010 and a lot has happened with respect to the ADA Amendments Act since then. The Equal Employment Opportunity Commission (EEOC) has finalized their regulations and issued those in March of this year and then those regulations became effective in May of this year. And quite a bit of litigation has happened since the webinar back in September of 2010. And today, what we are going to be doing is really talking about that litigation in the context of the ADA Amendments Act and the regulations. And this slide shows some of the general topics that we will be focusing on that where courts are interpreting the ADA Amendments Act and the regulations. First, we are going to be talking about how Congress has greatly broadened the definition disability in what courts have said about what Congress'' activities have been including with respect to the interpretation of substantial limits, interpretation of episodic impairments and those in remission and interpretation of the issues regarding minimum duration no longer to be required for substantial limitation for the actual disability and record of prongs of the definition of disability. We will also be talking about courts have applied the expanded list of major life activities, the list of specific disabilities that the EEOC says should be usually found to be substantial limiting. And then I will turn it over at that point to Brian and he will be talking about a number of other issues including mitigating measures, regarded as claims, the interplay between the ADA Amendments Act and the Rehab Act, the retro activity of the ADA Amendments Act, the effect on state law that the ADA Amendments Act has had and then pleading standards and how you present your case in the wake of the ADA Amendments Act. So, first as people will remember when the ADA Amendments Act was passed, Congress talked about how the courts have really gotten it wrong and the definition of disability should be construed in favor of broad coverage to the maximum extent permitted by the terms of the law. And they actually explicitly overruled two major United States Supreme Court cases that have unduly restricted the definition of who is considered a person with a disability and you might remember one of them being Toyota Motors'' case involving someone with carpal tunnel syndrome who is deemed not to be a personal disability and in that decision the Court said that the definition of disability needs to be strictly interpreted to create a demanding standard and that they would be looking at activities of central importance to daily life and not just for instance whether the person is substantial limited in performing manual tasks at work. You have to go broader to other issues they are involved with and determining whether they were substantially limited. And the Court overruled that case in the ADA Amendments Act and they also overruled what is called the Sutton Trilogy - three cases where people used assistive devices or medication and the Court said that when deciding whether somebody is substantially limited in a major life activity, you have to take those into account. And Congress said that is not what they intended and so they explicitly overruled that as part of its view that the ADA definition of disability should be interpreted broadly. This slide talks about some of the Court cases that are interpreting that issue and the Court cases have been uniformly supportive and consistent with what Congress has said. They are listening to Congress and they are binding that the ADA''s definition of disability should be interpreted broadly. The Fournier case out of Puerto Rico reiterates that the overarching purpose of the ADA Amendments Act is to reinstate broad scope of protection similarly with the Kingston case and the Brodsky case. And then more recently, we have some other cases where Courts are continuing to say the same thing. The Markham case out of Kansas where again the Court reiterated that Congress has expressed intent was that the ADA should be interpreted broadly. The Gesegnet case out of Kentucky where they say as result of this broadening of the definition of disability, Courts are going to be assuming that people have disabilities, that is going to be the presumption and the Naber case out of Delaware again reiterating the broad coverage of the definition of disability. I want to focus quickly on a couple of cases in a little bit more detail. First the Gil case which is one of the first cases interpreting and applying the ADA Amendments Act. This is a case out of Massachusetts in March of 2010. It involved an employee who had monocular vision and he was terminated on January 2nd, 2009 which is an important date. He was terminated when he sought to return to work following surgery. And the reason that is an important date when he was terminated, it was actually the day after the ADA Amendments went into effect on January 1st of 2009. So, it is likely based on the Court''s analysis that if you have terminated in December of 2008, he may not have been deemed covered under the ADA but he was terminated one day after the ADA Amendments Act went into effect. And he claimed he had monocular vision and claimed that his visual impairments substantially limited in the major life activities of seeing and working. And the Court looked at the case and said he did have a disability under the ADA Amendments Act. It was applicable. And they envision despite he had an actual disability, they also looked at the fact that he was regarded as having a disability and Brian is going to talk about the regard as a component in more detail. But the Court did note specifically as I indicated before that the employer likely would not have been as successful if his claim had been made prior to the effective date of the ADA Amendments Act because Courts have taken a much more narrow view of who is covered under the ADA Amendments Act. And the Court also used some really I think important language like they talked about that the definition of disability is now more liberal interpretation as a relaxed disability standard that the ADA Amendments Act is more plaintiff-friendly. And again, what this Court is saying is consistent with what we are seeing from Courts around the country interpreting the ADA Amendments Act. A more recent case from this summer out of Pennsylvania, the Cohen case involves somebody who had a back condition. And the Court, there said that under the law''s restricted standards of the ADA Amendments Act, the plaintiff had offered sufficient evidence to raise a genuine issue of fact as to whether he was a person with disability when he was terminated. The employer had said that he was not substantially limited. They pointed to the fact that he is only had the back impairment for about for about 4 months. And therefore, he was not--it was too short of time for him to qualify as a person with disability. And the Court said, "No, there is no strict durational requirement on the actual disability prong and we will talk about that in a little bit more. But they, this is just to reiterate the broad expanded coverage they are giving to people who have impairments that they did not give prior to the ADA Amendments Act. In addition to sort of the broad overall interpretation of definition of disability, the ADA Amendments Act talks about talking a broad interpretation of the component of the definition of substantial limits. Remember the ADA defines disability as being substantially limited in a major life activity. And so, that is where a lot of people lost their cases. They could not show they were substantially limited. And when congress passed the ADA Amendments Act, they said that term should be interpreted as broadly as possible. And they expressly told the EEOC that they wanted them to no longer interpret substantially limited as significantly restricted which is what the EEOC had said in its initial regulations. So now, the EEOC and the regulations that were just issued this year have removed that as their definition and they did not redefined substantial limits but really just said that this term, substantial limitations should be interpreted consistently with the purpose of the act in favor of the broad coverage. The other thing I think is important on this slide is that you might remember that the regulations talked about substantial limitation should be measured against the average person. And that really caused some problems in some ADA cases for people with disabilities because some Courts interpreted average person to connote that you had to have some sort of statistical analysis or some sort of vocational experts compare you to the "average person". And Congress and the EEOC has said, "You know that is not what we intended but we want them to compare it to as most people in the population rather than average and that you are not going to really need to resort generally to scientific or medical evidence. It really should be a common sense standard." And certainly, you can use that kind of evidence if you have it but Congress has said and the EEOC has said, you are not going to really need that in most cases. The other thing I want to point out in this slide is that the EEOC has issued a very helpful document. It is called question and answers for the final rule implementing the ADA Amendments Act and it basically walks you through the EEOC''s regulations and an easy-to-follow question and answer format and focuses on all the major issues. And there is a link on this slide to get to that document which could be helpful as issues arise for you. So on this slide we have some cases that interpret the whole issue of substantial limitation. The Franchi case from New Hampshire is actually not an employment case. It is actually under Title III involving access in a school. And this was a person who had an eating impairment that substantially limited her and she argued she was substantially limited in the major life activity of eating. And the Court found that she was substantially limited when you looked at it under the ADA Amendments Act. And this is important because the pre-ADA Amendments Act cases really did not--it was very difficult to show you are substantially limited in major life activity of eating particularly people with diabetes had a real hard time getting coverage under that major life activity because of the narrow view of substantial limitation. The Court has some interesting language. They said, the ADA Amendments Act no longer requires excruciating details as to how a plaintiff''s capabilities have been impacted by an impairment. And I think that really sums up what the Courts are doing and saying, "You do not have to spend all this time proving you have a disability and proving you are substantially limited. It should be pretty easy and this is an example of how that was. The Carmona case out of 5th circuit, was a case against Southwest Airlines brought by a flight attendant and they found that this person had a disability under the ADA Amendments Act. He had arthritis. And they said, "You know under the pre-ADA Amendments Act definition, the plaintiff probably would not have had a disability but by taking this broader view of substantial limitation, they found that he did. And they also talked about how he was covered despite the fact that his arthritis only flared up a few times a month and it was episodic and we will talk about that in more detail on a minute. And then the Gibbs case is a case out of Kansas involving somebody who had carpal tunnel syndrome. Again, another example where a lot of people with carpal tunnel syndrome had a hard time showing they are substantially limited in any major life activity under the previous interpretation of definition of disability. And again the Court said here by taking a broader view of substantial limitation and not using such a demanding standard, this plaintiff was deemed to be covered under the ADA and the Court used some issuing language. They said that Congress has lowered the bar on the disability inquiry and really that is what has happened. That is really no longer this high standard that was there before for showing substantially limitation. The Eldredge and Pridgen case on this slide are similar cases involving plaintiffs who had some sort of a visual impairment. One person had a progressive eye disease and the other had lost sight in one eye. And in both cases, they found that taking the substantial limitation terminology and interpreting it more broadly, they were covered under the ADA and under prior litigation before the ADA Amendments Act, they likely would not have been. And the reference before both the congress and the text of the ADA Amendments Act and the EEOC and its regulations have clearly stated that impairments that are episodic or are in remission are disabilities if they substantially limit a major life activity when they are active. There are a lot of people who had episodic impairments or impairments that are on remission like cancer who were before the ADA Amendments Act deemed not to be covered under the definition of disability because they did not show that they substantially limited at the time of the adverse action. The appendix for the EEOC regulations provides a really helpful list and it gives a list of impairments that they view may be episodic. And this is not an exhaustive list, meaning that there can be other impairments that would also be episodic. But this is some of the more common impairments that the EEOC says should be deemed episodic and still be ones that people could be utilize in getting coverage under the ADA. And some of those include epilepsy, hypertension, diabetes, asthma, multiple sclerosis, cancer and a variety of psychiatric disabilities and this slide has the link to only the regulations and the statute but also in the appendix if you want to look in that in more detail. The Kinney case is a case interpreting this concept of episodic impairments that I think is very useful. It is a very recent case just decided last month. And this was employee who had depression and sought to get in-patient leave. And the supervisor did not take the employee very seriously that used words like that the employee was "overreacting" and "other people get sad all the time, why do you need to have this in-patient treatment?" Ultimately the employee did take the leave and tried to return but was not allowed to return from leave and ultimately was terminated. And the Court did apply the ADA Amendments Act as well as the regulations because those were in effect at the time of this decision and they found that the employee had provided enough evidence to raise a question that she did have a disability and they explicitly rejected the employer''s claim that the employee''s isolated bouts with depression did not constitute an ADA disability. The employer has was raising language from the Seventh Circuit, the Appellate Court in the Midwestern region area that had used this exact language that isolated bouts with depression do not constitute an ADA disability and the Court said, "That is no longer the case. If you have an impairment that is episodic or intermittent, it can be an ADA disability if you can show that with substantial limit of major life activity when it is active." So again, it just demonstrates that Courts are really embracing not only the ADA Amendments Act but also the EEOC''s regulations in interpreting ADA cases now. The Feldman case is another example of episodic impairments. This involved two different employees, the one we will focus on here had multiple sclerosis and the Court here said that--reiterate what the statute says that impairments that are episodic or remission can be covered if they substantially limited the major life activity when active. And since none of the parties had disputed that MS when it was active constitute a disability, they found that the person had sufficiently stated the claim under the ADA Amendments Act. They also looked at a list of the EEOC had in its proposed regulations and ultimately putting its final regulations that listed multiple sclerosis as an impairment that the EEOC believes with consistently made meet the definition of disability. And they also made clear of the fact that the employee could do other activities and still meet the definition of disability so, another rejection of the Toyota Motor case that we talked about before. The Medvic case is an interesting case because it involves somebody who has stuttering and there are a very few cases I think where people who have stuttering as their impairment were able to be covered under the old ADA. But the Court here found that this person was substantially limited in the major life activity of communication as a result of the stuttering. And they pointed to the fact that when he took his deposition, he had a real hard time getting the words out and that was an example of him being substantially limited in a major life activity of communicating. And the employer said, "Well, this is intermittent. It does not happen all the time." And the Court said, "Well, look at the text of the ADA and the regulations, intermittent, episodic impairments can be covered under the ADA. And the Norton case is another example of this. This involved a gentleman who had renal cancer and the Court just reiterated that when active, people with cancer are substantially limited in a major life activity of normal cell growth. And therefore the fact that he was in remission at that time he tried to return to work when there was the adverse action that really was not relevant to the Court''s analysis. As I mentioned before, the EEOC has given us some guidance regarding the issue of duration and Brian is going to talk about the fact that the EEOC says that impairments that are transitory and minor will not be recognized as the "regarded as" prong of disability and he will talk about that later in the presentation. You can see it on Slide 46. But, the EEOC has said that the transitory part of transitory minor of that exception which is defined by the EEOC as 6 months or less, it does not apply when we are looking at the other 2 prongs of the definition of disability, the actual disability prong and the record of prong. And so therefore, the effects of the impairment that may last or is expected to last 6 months or less can still be substantially limiting if you bring it under the record or actual prong of disability. And the Feldman case is a good example of that. We talked about that case previously with respect to one of the plaintiffs who had multiple sclerosis. There was another plaintiff who had an impairment called Transient Ischemic Attack (TIA) or also known as a mini stroke. And the employer had claimed that this person was not covered by the ADA because it was really a temporary type of impairment. It was not a long-term impairment. They looked at EEOC regulations that had said that temporary non-chronic impairments of short duration with little or no residual effects usually will not be substantially limiting. And the Court rejected the employer''s position here. They said this plaintiff was covered by the ADA and said that this TIA impairment does produce stroke-like symptoms and that the effects of that impairment are significant. And so, they found that it was not the same as some of the EEOC examples like the common cold or sprained joint that even though this was a short-term manifestation of this impairment because it was a significant impairment, the fact that it was less than 6 months did not mean that it was not considered a disability under the actual disability prong. The Patton case I think is also a really interesting case involving--it was actually a Family and Medical Leave Act case, not an ADA case but the Court relied upon the ADA Amendments Act in reaching this decision. This involved a woman who was terminated. She claimed in retaliation for taking the time off to take care of her daughter as part of her Family and Medical Leave after her daughter had broken her femurs in a car accident. And the employer said, "You know the daughter''s broken femurs do not substantially limit her in the major life activity of walking which is what she was claiming because her inability to walk only lasted a few months." And again, they looked at some of the pre- ADA Amendments Act cases said that temporary non-chronic impairments generally do not constitute disabilities. And the Court looked at the ADA Amendments Act and interpreting the Family and Medical Leave Act and they said, "You know in the spirit of the ADA Amendments Act, the intensity of the plaintiff''s broken femurs, the fact that she could not walk unassisted and actually used a wheelchair for several weeks was enough to show that she was substantially limited even though this was a temporary impairment. There was also a testimony that questioned really how temporary it was, she had a lot of pain subsequently and a long-term limp. But even if you said that she did not have long-term impact, the fact that it was such a significant limitation for a period of time, that was enough even if it was less than 6 months. We have been talking a lot about the substantial limitation component of the definition of disability. But there is also some really important changes with respect to the major life activity. Remember, it is substantial limitation in one or more major life activities. And the ADA Amendments Act did not have a definition of major life activity--oh excuse me, the ADA did not have a definition of major life activity and in fact, did not even have examples. And so, there was a lot of litigation on what is a major life activity. And the congress when they passed the ADA Amendments Act decided to fix that by providing a lot more detail. They provided a lot of examples of common major life activities and they also included a broader group of activities that they called major bodily functions that we will talk about in a minute. So again, in the text of the ADA Amendments Act, there are a number of major life activities that had previously been identified by the EEOC as being major life activities including caring for one''s self, lifting, hearing, eating, sleeping, performing manual tasks, working, walking and standing, seeing, learning, speaking, breathing and concentrating in learning. In addition to those that had previously been identified by the EEOC, the text of the ADA Amendments Act also includes 3 more major life activities that had not previously been identified by the EEOC. And those are reading, bending and communicating. The EEOC in their regulations added an additional 3 different major life activities that are not in the text of the ADA Amendments Act that people may want to rely upon. Those are interacting with others, reaching and sitting. And one thing that is clear in the EEOC''s regulation as well as in the text of the statute itself is that these lists in the ADA Amendments Act regulations are not exhaustive, meaning they really just give examples and there are maybe other major life activities that people will allege in Court that can be recognized as major life activities that this list is really, they give people some guidance but is not an exclusive list. As I referenced before, the EEOC - excuse me-- Congress went even beyond the traditional major life activity list. They recognized that under the litigation under the old ADA, there were a lot of impairments that did not easily meet, sort of fit into the definition of disability. It was hard to find a real major life activity that was a good fit for certain impairments. So for instance cancer, a lot of people had a hard time proving major life activity was substantially limited and so what Congress said is, "Because we recognize there are some impairments that just do not easily fit, we are going to add a new category called major bodily functions. And those will make it easier for people to be covered. And those are people we will not cover, we want people--we intended for people with cancer to be covered and we want to add major bodily functions that will make it easier for them and people who still have similar disabilities to be covered who do not have an easy fit with the traditional major life activities. And so the statute has a list of variety of different major bodily functions like the immune system, neurological system, normal cell growth and so on that are in the text of the ADA Amendments Act itself. And then when the EEOC issued their regulations, they said, "You know we think there are additional major life activities or major bodily functions that would apply as well." And so they listed in another group of bodily functions that are not in the text but are now in the regulations. I think a particular interest is the one musculoskeletal which would be one that people with back impairments which is a common impairment that is raised with the EEOC and in courts that people with back impairments can now rely upon. And again, these lists just like we were talking about with the major life activities are not considered exhaustive. So there really should be no negative implication on the fact that it is not on the list of either the ADA text, ADA Amendments Act text or the regulations. This slide just gives you some examples of how some of these bodily functions are applied to a variety of impairments. So, the immune system, a good example with people who have Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) prior to the ADA Amendments Act, people with HIV and AIDS often had to rely upon the major life activities of reproduction because that is what Courts had recognized for people with HIV especially that was outwardly asymptomatic. And there were a lot of people with HIV who are not necessarily considering reproduction, so they were having a hard time being covered. And so now, they will not have to utilize reproduction. They can just say they are substantially limited in the major bodily functions of the immune system. Normal cell growth with cancer, the bladder for kidney disease, neurological for epilepsy, a lot of people with epilepsy had a hard time being covered before. The brain for people with different mental illnesses or developmental disabilities, circulatory for heart disease, a lot of people with heart impairments have a hard time being covered before and endocrine for people with diabetes. Again, a lot of people with diabetes had a hard time proving they were substantially limited in traditional major life activity. Now, they can just focus and say they are substantially limited in their endocrine system and move on to whether they were discriminated against or not. The Horgan case is just an example of one of these of a Court applying these major bodily functions. And this is an example of person with HIV and the Court found that he was substantially limited in a major bodily function of his immune system and therefore covered by the ADA. The Norton case is an example of somebody who had cancer, and again instead of trying to find a traditional major life activity, they simply said they were substantially limited in the major life activity of normal cell growth. The Court said, "Yep, that is a major life activity. You are covered by the law." One thing that I think is interesting here is that the Court said that even if that is the only major life activity the person could show they were substantially limited, that is enough. And the congress and the EEOC had made clear that you only have to identify one major life activity for ADA coverage, that is enough. The Verhoff case is not involving major bodily functions but is another example where if it is in the text of the ADA under the traditional major life activity list, you are going to be covered now. This is a person with severe eczema who had said they were substantially limited in major life activities of sleeping and thinking. Well, under the old ADA analysis, there were some Courts who did not even recognize sleeping or thinking as major life activities and this is another example of how that is no longer a question. It is in the statute itself, so it should not be litigated. And the Chalfont case out of Pennsylvania, again it involved somebody with cancer, this time leukemia as well as heart disease and they cited there is a substantially limitation in the major bodily functions of normal cell growth and the circulatory function. Just a couple more examples, the Meinelt case is another case involving cancer, somebody with a brain tumor, again the Court recognizing normal cell growth is a major bodily function and then the Seim case involving somebody with Grave''s disease and interestingly in that case, they talked about that the medication side effects substantially limited a variety of major bodily functions. They cited the immune system, the circulatory system and the endocrine system and Brian when he talks about mitigation measures, will talk about how side effects fit into the new ADA Amendments Act. The EEOC has regulations, provided even additional guidance to Courts and said that, "You know there are some impairments that are, they just should be easily found to be substantially limited, that there really does not need to be much time spent proving that these impairments are a substantial limitation of major life activities under the ADA." And so, again these are not quite per se disabilities but they emphasize that if it is on this list, it should not require much evidence at all to prove that they are substantially limited in major life activities. And so they listed here, deafness, blindness, mobility impairments requiring the wheelchair, intellectual disabilities formally known as mental retardation, partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystropy and a variety of psychiatric disabilities including major depressive disorders, schizophrenia, bipolar disorder, obsessive compulsive disorder and post-traumatic stress disorder. And if you look at this list, there are a lot of people who had these types of impairments who had a hard time proving they had a disability. And now they are deemed that they are ones that should easily be found to be substantially limiting. So this is a major, major change. The Horgan case is an example of the Court deferring to the EEOC and utilizing its list and finding that HIV is on the EEOC''s list and therefore is additional basis for finding that somebody with HIV has a disability under the ADA. And then the Cohen case is just an example that the list of major life activities is not an exclusive list. This is a case where the plaintiff had claimed that his back impairment substantially limited in the major life activity of climbing stairs. And while the Court did not say expressly whether he was substantially limited in a major life activity of climbing stairs or even if climbing stairs was or was not a major life activity, it did give the implication that Courts will look beyond those major life activities that are listed in the statute of the regulations. So at this point, I am going to turn it over to Brian. And he is going to move into the issue of mitigating measures. Brian East : Thank you Barry, that is great. Let''s talk a little about mitigating measures. As Barry indicated, one of the changes that the ADAAA brings is reversing the Sutton case and the 2 cases decided with it on the issue of mitigating measures. So under Sutton, we had to consider mitigating measures in deciding whether something was substantially limiting, the purpose in finding provisions of the ADAAA make it clear that Sutton is no longer the law. The statute itself now says the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures so, the opposite from what the law was before, any major change from the ADAAA. On this slide, we also see some of the examples from the statute of what mitigating measures are. So, when we are deciding whether someone is substantially limited in the major life activity, we do not consider things like those things on this list. So, some other points with regard to mitigating measures, first of all the EEOC regulations have identified 3 additional mitigating measures, psychotherapy, behavioral therapy and physical therapy. Secondly, the guidance from the EEOC that Barry has referenced gives us some more examples of mitigating measures, assistive devices and they have a list of those studying longer, receiving more time to take a test the regimen of medicine, exercise and diet and dialysis. The legislative history gives us some additional examples of mitigating measures referencing things like use of a job coach or personal assistant and service animals. The legislative history also states that mitigating measures include surgical intervention. Interestingly, the drat of the EEOC regulations originally had surgical intervention in their list of mitigating measures but when the final regulations came out, it was omitted and the EEOC indicated that they think the determination regarding surgical intervention is better assessed on a case by case basis. One other point to make about that is that there were numerous cases of pre-ADAAA on whether surgical interventions were mitigating measures and virtually all of them said that they were. So to the extent that surgical intervention, surgery is a mitigating measure when we are assessing whether someone is substantially limited in the major life activity. We look at them before their surgery or without the surgery that they have had or are contemplating. The next point to make is that the language of the statute to remind you is that the assessment of limitations shall be made without regard to the ameliorative effects. So, the positive beneficial effects of mitigating measures are not considered when deciding whether someone is substantially limited. But the flip side of that is not true. The negative side effects of mitigating measures are considered or maybe considered in deciding whether someone is substantially limiting. So for example, the fact that someone takes medicine when we are deciding whether they have a substantial limitation in major life activity, we looked at them as if they did not take medicine. But we can also look at the negative side effects of the medicines they are taking in assessing substantial limitation. The next bullet point, the availability of mitigating measures has no bearing on the case if the individual does not actually use the mitigating measures. This was an issue of some dispute in the pre-ADAAA case law and here we have the EEOC clarifying that if the person does not use a mitigating measure, we are not going to look at what mitigating measures they might use if they had a different course of treatment from their doctor or chose to do different things. The third bullet point here is we do not look at mitigating measures or the ameliorative effects of mitigating measures in assessing disability. But they may still be relevant when we are deciding whether someone is qualified and when we are deciding issues about accommodation. So for example, the fact that someone''s seizures are completely mitigated by anti-seizure medication does not interfere with coverage with that person still is on the (j)(3)(3) list that Barry talked about in substantially limited neurological functions particularly when looking in the active state and when looking without mitigating measures. But the fact that they no longer have seizures is obviously relevant to the question of whether they are qualified or what accommodations they might need. So, it may come into the case in another stage, it is not relevant to coverage. So let''s talk about some of the case law on this mitigating measure concept. The Ror case is actually pre-ADAAA that is it came out after the ADAAA but it involves conduct that took place before the ADAAA. But the Court was making the point that had this case arisen after the ADA Amendments Act, then we would be looking at it really differently. This is a person--Rory was a person with diabetes and the Court said for example under the new law, diabetes will be assessed in terms of its substantially limitation of major life activities as if the person were not taking insulin or medicine or other behavioral adaptations or on a diet. So, in a diabetes case, we might look at the person as if they were not taking any of those mitigating measures and unfortunately the medical history is very clear what happens to someone with diabetes who is not taking the insulin that they need, so a very different outcome than the case law as Barry suggested. Some more case examples, Verhoff referred to a person who had sleep problems, and there the case was actually decided before the ADAAA but the Court noted in footnote 3 that the ADAAA would have changed the analysis here because they had to consider the person in light of the sleep medication they were taking which help them with their sleep problems. Under the ADAAA, we do not look at that medication and therefore we look at their sleep problems without medication, would have been a very different picture. Godfrey is about hearing aids, those are mitigating measures if we are considering substantial limitation in hearing. We no longer--we look at the person as if they were not using their hearing aids. EEOC versus Burlington Northern, a prosthesis case, again this is case in which the Court actually applied the pre-ADAAA law but they pointed again in the footnote 3 that had the ADAAA applied then this person who use a prosthetic limb because he had a below knee amputation. We would not be looking at the ameliorative effects of him using the prosthesis. And the last case on this slide, the Court referenced that for example someone with ADHD with manifestations that are mitigated by the use of Adderall medication, we would now consider them without taking that medication, as if they were not taking that medication. We skip down to the second point here, it is sort of consistent with the ones we are talking about above a leg brace is a mitigating measure. We would not look at that after the ADAAA. Barry had mentioned the Medvic case about stuttering and there was evidence in that case that the person took medication that did assist somewhat with the stuttering. So again, we would look at that person as if they were not taking that medication. And then I think I will use the last bullet point on this slide to bring up another issue. The one exception to mitigating measures that has something that seems to be a mitigating measure but which the statute says is not and therefore we can look at the person in light of that are ordinary eyeglasses or contact lenses. But it makes a clear distinction both the statute and the regulations now make a clear distinction between low vision devices which are mitigating measures and we cannot consider an ordinary eyeglasses designed to fully correct vision which can be considered. So, the Edward''s case here is a case where the person uses a low vision device, not regular eyeglasses but used a magnifier and the Court said, we would consider that person as their vision was without the use of a magnifier. The second bullet point on this slide is about the Eldredge case is similar. Again, magnifiers are not ordinary eyeglasses. They are mitigating measures, so we cannot take them into account when we are assessing whether someone is substantially limited in seeing. The first bullet point here is making--is making the point we made earlier, what is not considered are the ameliorative effects of mitigating measures but the negative side effects maybe and the Seim case again Barry mentioned this one, there was a reference to the fact that there were medications side effects here in that case that were a problem for the plaintiff and that could be considered. This was someone who took medications that cause drowsiness, confusion and slurred speech but it was more, the effects were worst in the morning. And therefore one of the questions in the case was whether they would get the accommodation of a later start time when the impact was not as great. But again, we look -- the Court would consider these negative side effects of the medication in deciding whether the person was substantially limited. And we just go back to the previous slide--oops! I hit the wrong one. I apologize. Getting through back to 39 which I think is where we were. Yeah, this is the one I meant to go back to. The side effects were an issue in the Seim case. That again was a pre-ADAAA case but in the footnotes, they recognized that the analysis would have been different on the side effects under the new law. Okay, so that is an overview of mitigating measures, a little bit more detail about the regulations and how some of the cases are treating that change in the law. Let''s talk about the "regarded as" prong. This is a substantial change in the law again, one of the major changes brought about by the ADAAA. And this slide here, the last 3 points makes sure the 3 main points to be made about regarded as. The first is that whether or not that the person may have a regarded as disability whether or not the impairment limits or is perceived to limit or substantially limit a major life activity. So another way, major life activity is term and substantial limitation, in that term, they are irrelevant in a regarded as case, big change. The next point after that is there was an exception to that. So what we are going to see or what we have seen is that the regarded as prong is really an impairment standard now. You only have to show that there was adverse action taking based on impairment regardless as I said about major life activities or substantial limitations. This does not matter. So if you have the other side of a case or the Court saying, "What is the major life activity here? What is the substantial limitation?" In a regarded as case, it does not matter. The exception is that impairments that are both transitory and minor are not enough to support a regarded as case. So, Barry indicated this before. We know transitory is defined to mean 6 months or less but it is not just something that last 6 months or less. It has to be both transitory and minor. Minor is not defined but there are examples given like the common cold, typical seasonal allergies, et cetera. And as we saw one of the cases Barry went over, the Court in deciding whether something is minor compared it to those examples was and found that the back injury was altogether different from the really minor things that were referenced there. And the last slide--
I just want to jump at one point
Barry, if you want
while we are on this issue. And that is that it has to be actually transitory and minor. It cannot be the employer''s incorrect perception and under "regarded as", we are often talking about perception but if the employer incorrectly regarded to it being transitory and minor, that is not enough. It has to actually be transitory and minor for this exception to apply.
Yeah, and that is a real difference from before. Thanks Barry. We now have--it is an objective standard. It does not matter what the employer thought about transitory or minor. It is what the objective reality. So, that is an important point to make. The last point on this slide is a very important one. "Regarded as" will not support a reasonable accommodation claim. So, as we will see when you have an accommodation claim, you need to show actual record of and therefore substantial limitation and major life activity are important. But when you have any other type of ADA type plan, whatever that might be disparate treatment, or other kinds of claim, then "regarded as" is enough and we can get rid of the concepts of substantial limitation and major life activity. This is just repeating the point that accommodation--accommodations claims require actual or record of prongs and non accommodation cases we do not have to look at that but still it is going to be a very different standard as Barry has gone over, in assessing substantial limitation for those accommodation cases. Again let''s look at some of the case laws under regarded as. The first point to make is that the Courts understand and agree that major life activities and substantial limitation is no longer relevant in the regarded as case so we see several examples here where the courts are saying that and the last example is an interesting one just this month, a court on a motion to dismiss, was dealing with employer arguments about pre ADAAA case law regarding--on the issue regarded as disability. And as the court said, that is really irrelevant because the definition of regarded as disability pre-ADAAA and the ADAAA definition of that concept are really, really different. In the Lowe case, I think what the court said is that based on the substantial expansion of coverage, the defendant''s assertion that plantiff''s weight could not be considered a disability is misplaced and the Court made the point that one of the ways to establish disability in this case, was if the employer perceived the weight as an impairment. Again we do not care about whether they perceived it as substantial limiting a major life activity. We are just looking at whether they perceived that as in impairment. That is whether they believe they had an impairment. So their belief in the severity of that is irrelevant but they could be wrong about the fact of the impairment and still be covered--and still have coverage. Okay, and in the Fleck case, this was an ankle injury, there was a regard as claim. The Court again talked about the de emphasis on the employer''s beliefs as to the severity in this case was the person wore a boot for a while, needed to have surgery, needed to have breaks and the court said that was going to be enough evidence. And then next case we have the Cohen case, the employee used a cane, had visible struggles walking, and again pursuant to the broader standards of the ADAAA, the Court found sufficient evidence of regarded as. All right so, we said before that the one thing that the kind of impairment that will not support regarded as is one that is both transitory and minor. One point to make which is very clear for the regulations is this is a defense and so for example, in the employment context, it is the employer that will have to show that this condition was both transitory and minor determined objectively not subjectively and that reason to that case mentioned that, so if the defendant''s burden but sort of as a, I suppose a practice tip here, the plaintiff putting on evidence at the summary judgment stage or stating things in the pleading at the rule 12 stage, that reflect either the seriousness of the condition or the fact that it lasted or will last more than 6 months, or both can certainly help and again, in this recent case from earlier this month, the court noted that there were pleadings in the case that supported the notion that it was not both transitory and minor. Let''s move on to, at least briefly, to record those. So we have talked about actual disability, its essential limitation the major life activity. We have talked about regarded as not substantial limitation major life activity but impairment that is not both transitory and minor, but the 3rd way to qualify, the 2nd prong in the definition is a record of no explicit changes from the statute here and no major changes from the regulations except to make the point that all the changes we have been talking about under actual also come in here, so construed broadly. When we are looking at a history of substantial limitation major life activity, those terms are construed for broad coverage. Also, the EEOC makes clear something that was not totally clear in the pre ADAAA case law and that is record of disability is enough to support need to accommodate claim, so regarded as not but either actual or record of is. And then the third point one that Barry made with regard actual disabilities, the 6-month transitory part does not apply to record of again there is no minimum durational component. That is simply one factor
Brian I just wanted to make one point on the record of an accommodation. A lot of people ask me, you know how could you get an accommodation for record of because you are not actually impaired at that time and I think that the EEOC gives some good guidance and examples for instance somebody who had some sort of impairment that now no longer exists, it is completely gone but they have some sort of maybe follow-up medical appointments they need to do as a result of the previous substantial limitation that they had and that that would be the kind of accommodation that the employer would--could provide in a record of situation.
Yes that is exactly right. I would go further from that and say that I kind of agree with those folks who say, "What do we need records of anymore?" I do think it would be a much less used prong in the future mostly because of the mitigating measure piece. So for example in the example given by the EEOC of someone whose treatment has cured or put the condition in remission and they are just seeking leave to go to follow-up medical exams, that certainly of a record of case. But also if we look at that person in their unmitigated state, before the surgery, before the other therapy, then it might also be an actual case because actual, because actual we do not consider those medicated measures that took place in the intervening times so we will see how frequently record of comes up and against my prediction is not so frequently. Okay, so a few cleanup points to make, the first is that the ADAAA expressly gave the authority to write regulations on the Act''s definition of disability to the EEOC which regards to title one employment issues, Department of Justice (DOJ) with regards to title 2 and title 3 and DOT with regard to transportation issues that are covered by the law. That is potentially important because one of the things that was going on, particularly at the Supreme Court, to a lesser extent at the lower courts, was how much deference do we have to give to the EEOC regulations that relate to the definition of disability. And the reason the Supreme Court was kind of hedging about that was because Congress in its view had not clearly stated they wanted the EEOC to write regs on that issue of the definition of disability. Well that has changed, so presumably the full chevron style deference must now be given to the regulations and the perhaps lesser but still deferential view will be given to the appendix and other guidance documents from the EEOC. Next, the last bullet point on this slide we are just making the point that we call it the ADA amendments act, that is the name of that but it actually applies to discrimination claims under the Rehab Act too. So if you are talking about a federal sector employment case under section 501 of the Rehab Act or a disability discrimination case against the recipient of federal financial assistance under section 504, this same broadening of the definition of disability applies. And here we have a case that makes that point although it is in statute so it is hard not to make the point about coverage of the Rehab Act, but interestingly the Court here suggests that it may also apply to the Fair Housing Act as well because the Fair Housing Act uses that same substantial limitation major life activity act or record of regard as format that the ADA did before and does now so suggestion that it may apply here. A big question has been whether the ADA amendments apply retroactively what the statute said was, it is effective January 1, 2009 and so the big question was, what does that date mean? Does that date mean I can, it applies to my case that was filed on January 2, 2009, does that apply to my case on which I had an EEOC charge filed on January 2nd, 2009? And the case law is pretty uniform now every circuit to consider the issue and almost all the lower courts and the EEOC all say it is not retroactive and what they mean by that is it only applies to adverse actions that took place on or after January 1, 2009. There is one exception to that in the case law and there is nothing strange about it. This a pretty typical or pretty straightforward result. Here this was not an employment case, this is a case involving extra time as an accommodation on an upcoming medical licensing exam and the person lost--the trial court of the issue of disability and on appeal the ADAAA is now passed, and the question was, does it apply to the appeal and the Court here and this is the same Court that has said it generally is not retroactive. But here what they say is because the accommodation that is sought is something that is going to happen in the future, that is attested not happened yet, the plaintiff was seeking injunctive relief requiring the accommodation on an upcoming post-January 1, 2009 offering of the test then the ADAAA would apply sort of in midstream and remanded the case and it did not settle. People have tried to expand that Jenkins case to particularly other employment cases, and the Courts often reject it because they are saying it is not so much whether you are seeking injunctive versus monetary relief. The question is really whether you are focusing on something upcoming in which case it would apply or something that happened pre-January 1, 2009 in which case it would not. One other thing on this point, it is possible to use the ADAAA as guidance even when it does not apply. So what you cannot do is say the ADAAA shows us what Congress intended so we do not want you to consider mitigating measures in this case even though it takes place prior to January 1, 2009. That does not work because we had binding precedent from the Supreme Court with a different result. But when you are talking about something on which there is not binding precedent for example, what are major life activities, we have an example from the Green case, where the Court used in part the ADAAA''s notion of the biological functioning kinds of major life activities to give it confidence that bowel functioning was a major life activity. There they were not having the having the buck in the circuit authority from the D.C. Circuit or the Supreme Court that said it was not. They were just trying to figure out whether Congress meant it or not, and one of the ways to look at that is to see Congress said it meant in 2008 when they passed ADAAA. And they said this is what we always meant so this is not an application of the ADAAA retroactively. This is just using it as guidance to what Congress might have meant on something that is still an open question. So, these are more examples where the case, where the courts point out the differences and show the ways in which the ADAAA would yield a different result. And the next question is--and perhaps one before, excuse me was talking about that as well, but the next question is really, what about the ADAAA''s effect on state laws? In particular, some states have laws that either expressly or by state precedent adopt standards of the ADA so does that mean that they also adopt standards of the ADA as amended? We do not know the answer to that yet, we have one example, state of Texas where they actually passed a legislative amendment to track the ADAAA and we have case law that is referenced here and on the next slide that pretty much says we are not sure yet. We will see what happens. I think several courts assume that if the policy of the state is to track federal law, that will be the policy now with regard to the ADA amendments act but we will have to see. The other point that is made on this slide is that some states already had a broader definition of disability than the old ADA, the pre-ADAAA law and obviously, they do not need the help in some of those areas. So with regard to Massachusetts Law for example, the courts had rejected the Sutton no mitigating measures or considering mitigating measures piece and they instead looked at conditions without regard to mitigating measures, and that is the ADAAA standards so it does not matter whether it applies or not, state law already covered it. California also had a broader state law. So, some states it may not matter so much. Let me, let me just talk for a minute about lessons that one might draw from the pleadings cases so far, there are not a lot of them and let me back up and say there are probably 800 or 900 cases now on West law that cite to the ADA amendment''s act and probably--well, substantially more that 95 percent of those cases are really about retroactivity that is they are noting that this law has changed, that it brings about big changes but they do not apply it to the case at issue because the conduct took place prior to January 1, 2009. But there are cases that get more to the meat than that and those are the cases that we have been talking about by and large here today. And some of those are decided on a motion to dismiss based on the pleading under rule 12 on the federal law for example. And what we see, the main point that we see is that the courts understand that disability is much more broadly defined much more inclusive now than before and therefore as a result they are much more likely to say that the pleadings were sufficient to identify a disability under the new law and so these are some examples of cases here. The last case on this slide though, here the Court said, yes but the plantiffs still has to allege what major life activities were substantially limited. That is not true actually under regarded as. So if this were an accommodation case which actually I think it was, then the court is right that there is still has to be a substantial limitation of major life activity. So I think the lesson here is, let me go ahead and just throw out the next examples of cases in which the courts recognized that the definition of disability is a lot broader so a lot more things are going to be good enough. So in the first point, first case here, there was not even a specific identification of the disability but it was still enough because there was a--it was plead as a serious health issue that lasted for more than 6 months, and with other things in it that were enough to show. But my own suggestions are to identify the impairment, in a--in an accommodation case to list the major life activities and how they are substantially limited in a non-accommodation case, to point out that we do not have to list major life activities in substantial limitation under a in a non accommodation case, because we are going under regarded as, but to go ahead and take on some of that transitory and minor stuff and put in the fact that it lasted more than 6 months, the fact that it was more than minor in what ways it was more than minor. And I think that might be a safer way to go, not so much because the ADAAA requires it, but just under the new ICAVL standards which the Courts are still trying to work through and which have prior to the ADA amendments act, resulted to some ADA clients getting thrown out, I think you know to go ahead and identify the impairment, to identify the substantial limitations in major life activities where that is needed and to point out where it is not needed but to go ahead and also identify that it was more than transitory and more than minor. Let me talk just for a minute about--yeah I will talk just for a minute about where I think we are going. What I think everybody expects, what Congress said they expected what the EEOC said they expected and what the Courts appear to be doing, is to find that the person does have coverage, many people do have coverage under the law, they have sufficiently showed disability and that is no longer going to be the simple focus of the case. It is not intended to be, Congress specifically said that they wanted the focus to be on whether the rights were violated and not covered. And that seems to be what is happening. So I think as a result we are going to see a lot more cases on the parts of the case we did not get to as often pre-ADA amendments act. Those include the concepts of qualified, what are the essential job functions, is the person able to do them with reasonable accommodations, is the accommodation sought reasonable, et cetera. Those issues we got, we did reach those issues in a number of cases so there is a fair amount of case law on qualified but I think that is going to be a lot more where the action is now. And the sort of a sub bullet point under qualified is a reference to the job descriptions. The job description is an opportunity for the employer to set out what they think the essential job functions are and it is probably time for the employers to--for employers to look at those and maybe update them. It is not going to work to say everything that has ever been done traditionally is an essential function but putting down what you think are essential can be useful. It is not determinative but it is looked at, so qualified is going to be more of an issue. The EEOC certainly recognizes this. They have, they had a--they took testimony on the issue of leave as a reasonable accommodation and in part they did that perhaps as a precursor to new guidance from them, but with the recognition that we will be getting from these questions of reasonable accommodation et cetera much more frequently than we did before. The bullet point here or the sub point of direct threat, again we did get to that issue in a number of cases before but the safety defenses direct threat business necessity are likely to be a more active part of the analysis in case law than it was before. Interestingly, the defense to reasonable accommodation is undue hardship. The employer does not have to do it, for example, if it would pose an undue hardship. That issue was almost never litigated, because the cases almost always went off on some earlier ground, typically the definition of disability. So there is not a lot of case law on undue hardship, we have good guidance. It is not changed anyway. We have good guidance from the EEOC about what it means about what the factors are to look at, et cetera. But I suspect we will get a lot more cases in which the employer and defendants will be making the undue hardship or undue burden defense. It is mostly about cost, that is, in most cases, it is about cost, but it is certainly not exclusively about cost, so we are going to be seeing what happens in the case law. There may be litigation over the deference to the EEOC. So as indicated, there is now support for a high level of deference to be the EEOC but that does not always mean the regulations are upheld. It just means they usually are. So, what about the new major life activities that the EEOC has added? One reference here is interacting with others, there are other examples that Barry gave us. Someone might choose to challenge that, I think because of the fact that that was frequently recognized as a major life activity even pre-ADAAA although not always, and the fact that these are non exhaustive lists. That one is likely to be upheld as are the other additions to the major life activity, both the more active, more activity kind of major life activities, more traditional kind and the bodily function kind. There maybe--there will be other issues that come up though, because as indicated, a lot of these lists are not exhaustive. So for example our sexual relations a major life activity again, most cases, although not all said that it was even pre-ADAAA, one would think that with a new emphasis on a broad interpretation, it would be now but we will see, it is not in either of the statutory not the regulatory list. Driving, again, that was an issue that usually came out bad for the plaintiff but not always. And again we will see if under this new broad view of major life activities, as well as, all the other parts of the definition, we will see if that is covered. And then the last bullet point here is really reminding us of a point that was already made. Are surgical interventions, mitigating measures that we have to exclude from the consideration deciding whether someone is substantially limited in a major life activity, and so I think the legislative history, there is some indirect support for this concept in the regulations but no direct support. But the case law I think all added together suggests that it is, but again an area of possible future litigation. So I am going to pass it back to Barry now and thank you.
Thanks Brian, just a few more things, we have a slide that just gives some resources for the ADA, you have the link and the phone number for the national network of ADA centers, as well as the equal employment opportunity commission as we referenced before, there is a great Q and A on the ADAAA regulations as well as the actual regulations and statute itself right on the website and I am sure we will continue see more from the EEOC guidance for small businesses, just a lot of information there. You can also contact our office at Equipped for Equality if you have questions about the ADA Amendments Act. And then a great resource that we talked about in past webinars the Job Accommodation Network which has lot of practical guidance on how to accommodate people with disabilities and very specific to each--a lot of different types of disabilities. And again given what Brian said that we are going to be moving more into issues of reasonable accommodation, undue hardship, and less on definition disability, I think people need to be accommodating more than they were before, people who they thought before maybe did not qualify as a person with a disability. I was at an ADA Amendments Act training by an employer and they say that the ADA Amendments Act that acronym ADAAA they say now stands for always disabled, always assessed accommodation. And I think that is a really good lesson for really all involved and that, you know most people who have some impairment are going to be able to be more likely to be considered to have a disability and employers are wise to really assess accommodations for people that they might not have assessed in the past. Remember again if you want continuing legal education and you are an Illinois attorney, you can contact me at barryt@equipforequality.org and I will work with you on the paperwork for that. And we will be posting on the ADA-Audio.org website. Our next series of legal webinars, the--the ADA centers on a federal fiscal year so that new year starts in October and goes to the end of next September, 2012 and it is anticipated that we are going to have a number of different sessions and we are just finalizing the different topics that we are going to be having and must we do, we hope that all people will join us for that series as well. So, I think just in summing up, some final points, the main thing I think that I would say is that the Courts really seem to be listening to Congress and listening to the EEOC. And unlike the narrow interpretation that we saw the ADA before, the Courts see that Congress really intends for Courts to take a broad view of the definition of disability and as Brian indicated, that is just not going to be where the battleground is anymore and this litigation is really is going to go to whether people are discriminated against and some of the issues of reasonable accommodation and the undue hardship and direct threat and some of the other things that Brian indicated. And I think that is a great development for people with disabilities because for years, people with disabilities and their cases were just different from other protected classes and we did not see other protected classes getting dismissed because they were having a hard time proving they were in a partly effective class, and now people disabilities will not be facing in that rigorous review anymore and will now have an opportunity to really have their case heard in Court which was not happening before. So Brian do you have some final comments?
No, I do not think so. Thank you.
Okay, well I just want to thank Bryan as you all heard he has great expertise on these issues and we appreciate him for taking time to join us and we look forward to having him join us in the future. Thank you so much.
Thank you Barry and thank you Brian for your presentation today. If you have any questions regarding today''s presentation, then you can send an email to adaconferences@adagreatlakes.org, and as Barry mentioned the schedule for the upcoming 2011-2012 season will be posted in October to the ADA-Audio.org website. Thank you and have a great day.