Recent Trends in ADAAA Cases
Presented By: Kelly A. Hayden, JD
Director, Employment Law
Services/ General Counsel
Management Association
Background
• The ADAAA was enacted September 25, 2008 and effective January
1, 2009.
• Congress directed the EEOC to issue regulations.
• The regulations were issued March 25, 2011 took effect May 24,
2011.
• The ADAAA makes it easier for an individual to seek protection
under the Act and to establish that he/she is disabled within the
meaning of the Act.
• Congress mandated that the definition of disability be construed
broadly and the new regulations carry out this directive.
• The regulations also make it easier for an individual to establish
coverage under the ADAAA’s “regarded as” prong.
• Neither the ADAAA or the regulations change the definition of
disability…the regulations change how that term should be
interpreted.
Definition of Disability
• A physical or mental impairment that
substantially limits one or more major life
activities;
• A record of physical or mental impairment that
substantially limited a major life activity, or
• When a covered entity takes an action prohibited
by the ADA because of an actual or perceived
impairment that is not both transitory and
minor (regarded as prong).
What are “major life activities?”
• Non-exhaustive list includes: caring for oneself,
performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, interacting
with others and working.
• Operation of bodily functions including the immune
system, special sense organs and skin; normal cell
growth; and digestive, genitourinary, bowel,
bladder, neurological, brain, respiratory, circulatory,
cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions.
When does an Impairment
Substantially Limit a Major Life
Activity?
• An impairment need not prevent or
significantly limit a major life activity.
• “Substantially limits” to be construed broadly in
favor of expansive coverage.
• Individualized assessment.
• Primary focus should be on whether discrimination
occurred; this determination should not require
“extensive analysis.”
• Only one major life activity need be affected for
coverage.
How Long Does Impairment Have to
Last for Coverage?
• Six month rule no longer applies to “actual” or
“record of” cases.
• Duration is a factor; but there is no bright line
test.
• For “regarded as” cases, transitory impairments
(those lasting fewer than six months) are
excluded from coverage.
Episodic Impairments/Impairments in
Remission
• Episodic impairments and impairments in
remission are now specifically covered if the
impairments would limit a major life activity in
their active state.
• Provides examples: epilepsy, hypertension,
diabetes, multiple sclerosis, asthma, cancer and
psychiatric disabilities, including major
depressive disorder, bipolar disorder and
schizophrenia.
Mitigating Measures
• Reduce or eliminate the symptoms/impact of an impairment.
Non-exhaustive list includes medication, medical
equipment/devices, prosthetic limbs, low vision devices,
oxygen therapy equipment, use of assitive technology,
psychotherapy, behavioral and physical therapy.
• Does not include ordinary glasses/contact lenses.
• Positive effects can no longer be considered in determining if
individual is disabled. (Negative effects may be considered).
• All effects of mitigating measures may be considered in
determining need for reasonable accommodation/direct
threat.
• No requiring use of a mitigating measure.
Individualized Assessment
• According to EEOC, certain impairments will nearly
always substantially limit major life activities.
• These include (but are not limited to): deafness,
blindness, intellectual disability,
partially/completely missing limbs, mobility
impairments requiring use of a wheelchair, autism,
cancer, cerebral palsy, diabetes, epilepsy, HIV, MS,
MD, major depressive disorder, bipolar disorder,
PTSD, OCD and schizophrenia.
Is That a Disability? Recent Court
Decisions in Favor of Employees
• Injuries from a car accident, including difficulty
sitting for long periods, climbing stairs/ladders,
carrying heavy things, sleeping, engaging in sexual
activity and general day-to-day “stuff.” Medlin v.
Honeywell Analytics, Inc. 2012 WL 511997 (M.D.
Tenn. 2/15/12).
• Breast cancer survivor. Katz v. Adecco USA, Inc.,
2012 WL 78156 (S.D.N.Y. 1/10/12).
• Depression. Estate of Murray v. UHS of Fairmount,
Inc., 2011 WL 5449364 (E.D. Pa. 11/10/11).
Employee Cases (cont).
• Stuttering. Medvic v. Compass Sign Co., LLC,
2011 WL 35113499 (E.D. Pa. 8/10/11).
• Carpal tunnel on left hand only. Gibbs v. ADS
Alliance Data Systems, Inc., 2011 WL 3205779
(D. Kan. 7/28/11).
• Ankle injury. Fleck v. Wilmac Corp. 2011 WL
1899198 (E.D.Pa. 5/19/11).
• Obesity. Lowe v. American v. Eurocopter, LLC,
(N.D. Miss 12/16/10).
Is That a Disability? Recent Cases in
Favor of Employers
• Colonoscopy/polypectomy. Brtalik v. South
Huntington Union Free School District., 2012
WL 748748 (E.D.N.Y. 3/8/12).
• Headaches/alcoholism. Mann v. Donahoe, 2012
WL 569189 (D. Conn. 2/21/12).
• Lifting restrictions for 4-6 weeks. Overfield v.
H.B. Magruder Memorial Hospital, Inc. 2012
WL 243341 (N.D. Ohio 1/25/12).
• H1N1. Lewis v. Florida Default Law Group, P.L.,
2011 WL 4527456 (M.D. Fla 9/16/11).
“Record of” a Disability
• An individual who does not currently have a
substantially limiting impairment but who had
one in the past.
• Could include conditions in remission.
• Could require reasonable accommodation.
“Regarding” Someone as Disabled
• An organization violates this prong when it takes an
action prohibited by the ADA against an individual
who has an impairment or who the organization
believes to be impaired.
• Will not apply if the impairment is “transitory and
minor:” lasting or expected to last for six months or
less.
• Previously (but no longer), an individual had to
prove that the organization believed the impairment
or perceived impairment to substantially limit a
major life activity.
“Regarded As”
• An organization violates this section if it takes a
prohibited action against an individual because
of an actual or perceived impairment.
• Defenses include: impairment was transitory
and minor, individual not “qualified,” direct
threat, requirements of another law and, most
importantly, employer lack of knowledge of the
employee’s medical condition.
• No duty to accommodate if based on perception.
“Regarded As” Cases
• Visual field defect. Chamberlain v. Valley Health
System, Inc. 2011 WL 560777 (W.D. Va. 2/8/11).
• Herniated disc and “100% healed” policy.
Powers v. USF Holland, Inc. 2010, WL 1994833
(N.D. Ind. 5/13/10, affirmed 667 F.3d 815 (7th
Cir. 2011).
• Fractured upper arm. George v TJX Cos., 2009,
WL 4718840 (E.D.N.Y. 12/9/09).
• Angina. Wurzel v. Whirlpool Corp. 2010 WL
1495197 (N.D. Ohio, 4/14/10).
Requiring Medical Documentation from
Employees
• Employer may require medical documentation from an
employee when the employee requests accommodation
and the disability is not obvious.
• Documentation to establish the existence of the
disability and a link between the disability and
accommodation request.
• The request for documentation should be limited to the
specific issue.
• Start with employee’s doctor. If employer’s doctor
involved, employer pays.
• If employee requests reasonable accommodation,
employee has a duty to cooperate in providing
information.
Next Steps for Employers
• Accommodation policy in employee handbook.
• Train managers and supervisors to recognize
requests for accommodation and what to do
when received.
• Document all steps of accommodation process.
• Make sure all leaves are coordinated: FMLA,
ADA accommodations, worker’s compensation.