The New Disability?
Developed by
L. Scott Lissner 10/05/08
DETERMINGING
DISABILITY &
ACCOMMODATIONS
UNDER THE
ADA & ADAA
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Presenter
• L. Scott Lissner
• ADA Coordinator, The Ohio State University
• Associate, John Glenn School of Public Policy
• Lecturer, Moritz College of Law, Knowlton School Of
Architecture & Disability Studies at The Ohio State University
• Most recent publications
– Universal Design in the Institutional Setting: Weaving a
Philosophy into Campus Planning; 2006 NEA
– From Legal Principles TO Informed Practice J.E. Jarrow &
L.S. Lissner; 2005 AHEAD
• BA, Rutgers Univ.; MA, Hunter College; ABD UVA
• Lissner.2@osu.edu
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DISCLAIMERS
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Make It Sound Easy
I am not an architect
I am not a lawyer
Embrace Sgt. Friday: The story you are about to hear….
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CAUTION
POWERPOINT PRESENTATIONS
CAN BE DANGEROUS
NASA's Columbia Accident Investigation Board
identified simplistic thinking from an overreliance on PowerPoint presentations as a
contributing factor in the Columbia shuttle
disaster.
(New York Times Magazine 12/14/2003)
The ADA Amendments Acts
of 2008
Public Law 110–325
110th Congress
An Act
To restore the intent and protections of the Americans
with Disabilities Act of 1990.
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, . . . . . .
CONTEXT
• Sept. 26,1973 Sec. 504
Signed
• April 28, 1977 Sec. 504
Regulations Implemented
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1979 - Southeastern Community
College v. Davis
“We do not suggest that the line between a lawful
refusal to extend affirmative action and illegal
discrimination against handicapped persons always
will be clear. It is possible to envision situations where
an insistence on continuing past requirements and
practices might arbitrarily deprive genuinely qualified
handicapped persons of the opportunity to participate
in a covered program.” Justice Lewis Powell
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1987 - Arline v. Nassau County
"Congress
acknowledged that
society's accumulated
myths and fears about
disability and disease
are as handicapping as
are the physical
limitations that flow
from actual
impairment.”
Justice William J. Brennan 1987
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1990 The Signing of The ADA
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• 1999 Sutton Trilogy (Sutton, Murphy & Kirkingburg)
• 2002 Toyota v. Williams
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• 2007 ADA Restoration Act Introduced
• June 2008 Compromise Language
Reached on “Substantially Limited”
– Changed to the ADA Amendments Act
– Passed 402-17 in the House
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• August 2008 Senate Changes Language
– Markedly Restricted Back to Substantially
Limited
– Passed unanimously
– New Version Accepted by House Sept. 18
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• September 2008 Signed by Pres. Bush
• January 1, 2009 implementation
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Summary of the Findings
• Congress intended the ADA to be broadly
construed
• Congress based the ADA’s definition of disability
on Section 504 of the Rehabilitation Act because
of the broad construction represented by Arline
v. Nassau County School Board
• The Supreme Court’s decisions in the Sutton
trilogy and Toyota construed the term disability
too narrowly.
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Summary of the Purposes
• Restore the broad protections of the ADA was
intended to provide
• Reject the Court’s reasoning in the Sutton Trilogy
that mitigating measures should be considered
as part of determining disability
• Reject the Court’s holding in Toyota that the ADA
requires a demanding standard that an
impairment severely restrict a major life activities
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Definition of Disability
• A physical or mental impairment that
substantially limits a major life activity
• A record of such an impairment
• Being regarded as having such an
impairment
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What is Substantial?
• Broad Construction (not Toyota)
• Exclude ameliorative impact of mitigating
Measures
– Medication, medical equipment, prosthetics
• Standard eyeglass exception
– Assistive technologies
– Compensatory strategies and
accommodations.
• Episodic conditions or those in remission
– If it substantially limits when active
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Limited in What Way?
• Manner
• Condition
• Duration
• Compared to the Average Person
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Major Life Activities
• Includes but not limited to, caring for
oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking,
standing, lifting, bending, speaking,
breathing, learning, reading,
concentrating, thinking,
communicating, and working.
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“Major Life Activities” also include the
operation of major bodily functions including
but not limited to :
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Immune
Respiratory
Circulatory
Endocrine
Digestive
Reproductive
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Neurological
Brain
Normal Cell Growth
Bowel
Bladder
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Has a condition or
is Regarded As
• Broad Construction
• Focus on the substantive issues of failure to
accommodate or exclusion not class
membership
• Excludes transitory (<6 months) or minor
• Not entitled to accommodations
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Also of Note
• Discrimination on the “basis of disability”
• No reverse discrimination
• Changes Section 504 to match
• Does not change the definition of
reasonable accommodation
• Does not impact the use of rationally
based qualification standards
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How to respond to the ADAAA’s
Implementation
REVIEW:
• Policies to reference ADAAA
• Accommodation request process
• Documentation requirements
• Determining essential functions
• Determining accommodations
• Available resources
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COVERED ENTITITES
• Title I: Employers with 15 or more workers
• Title II: State & Local Govt.
• Title III: Public Accommodations
• Prohibits discrimination on the basis of disability in
programs, benefits and services.
• Requires the provision of reasonable
accommodations
• Facilities (new construction, renovation & barrier
removal)
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Non-Discrimination
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•
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•
Has a disability
Record of a disability
Regarded as having a disability
Relationship or association with someone who
has a disability.
Reasonable Accommodation
• Individuals with disabilities
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Aspects Of Employment
• Advertising
• Recruitment
• Hiring &
Terminations
• Compensation
• Assignment
• Transfer & Promotion
• Technology & Tools,
• Testing & Communications
• Professional Development
• Pay
• Benefits
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The Law applies to provision of all
programs and services including:
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Recruitment
Admissions
Instruction
Housing
Research
Financial Aid
Job Placement
Internships
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Law applies to provision….
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Counseling
Intramurals
Athletics
Transportation
Employment
Events (Visitors)
Internet Services
Student
Organizations
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Some examples of covered
disabilities
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Epilepsy
Paralysis
HIV/AIDS
ADD/ADHD
Hearing or visual impairment
Psychological conditions
Specific learning disability
Back/orthopedic conditions
Diabetes
Morbid obesity
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Documenting Disability
•
• Ask For What You Need
– Impairment
– Impact related to work place needs
– Recommended adaptations
• Who Determines Disability
– Interactive process
– Decision maker of first resort
– Grievance process
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Maintaining Documentation
• Confidentiality
– Not covered by HIPPA
– Not main file
– Who Needs to Know
• Enough to implement
• Safety/Evacuation Issues
• Complaint investigators
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Not generally covered
• Minor non-chronic conditions of short
duration
• Simple physical characteristics
• Common personality traits
• Environmental, cultural or economic
disadvantages
• Interpersonal allergies
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Who is a Qualified Individual?
• To determine if a person is a qualified
individual, ask two questions:
– Does the person meet the necessary prerequisites?
– Can the person perform the essential functions, with
or with accommodation?
– Are the accommodations reasonable?
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What Is An Accommodation?
• Modifications to policy & practice
• An aid, tool, technology, interpreter, etc.,
that helps the individual with a disability to
overcome a barrier
• Modifications to the environment
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Safety Considerations
• The nature, severity and
duration of the potential harm;
• The likelihood that the potential
harm will occur;
• The imminence of the potential
harm; and
• The potential for reasonable
accommodations to mitigate the
risk.
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Reasonable Accommodation:
• Rationally Related to the impacts of the
disability
• Assists in the effective performance of the
essential functions
• Makes it possible for an individual with a
disability to enjoy an equal participation or
employment opportunity
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Reasonable Accommodation
• Does not present an undue burden
– Safety
– Business necessity
– Administrative burden
– Financial burden
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Essential Elements & Functions?
• The “fundamental or core goals” of the program
or position
– Focus on the purpose and result, rather than the
manner in which it is performed
– Credentials
– Do not include marginal functions or secondary
benefits
– Documentation and Practice
• Job/Course descriptions
• Creation documents
• Past exceptions
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Evidence For Essential Functions
• Written descriptions prepared in advance of
the accommodation questions
• Consequences
• Amount of time spent on the task
• Experience of current or former incumbents
• The employer/faculty judgment with rational
basis
• Terms of a collective bargaining agreement
• Certification and licensure
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Deference
• Academic institutions, making academic decisions,
within their areas of expertise, will receive
substantial deference from the courts, DOJ & OCR
(Michigan v. Ewing)
• Deference is earned through adherence to a
“diligent” consideration of the request and
“alternative means” to achieving the fundamental
program objective, resulting in a “rationally
justifiable conclusion (Wynne v. Tufts, Guckenberger v.
Boston University, Wong v. Regents of California)
• Mere reliance upon tradition or existing rules may
well not be a sufficient justification for refusing to
implement a requested accommodation
(Southeastern v. Davis; PGA v. Martin)
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Special Cases
• Performance Evaluations
– Pre & Post accommodation
– Oh! That is because of…..
– Evaluating the Effectiveness of
accommodations
• Disciplinary Action
- Conduct is conduct
- Failure to
accommodate
- Extenuating
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RESOURCES
• OSU ADA COORDINAOTOR
HTTP://ADA.OSU.EDU
E-MAIL ADA-OSU@OSU.EDU
•
Disability Law Lowdown 20 – Employee Performance
Discussion of the Equal Employment Opportunity Commission’s new
guidelines on applying performance standards to employees with disabilities
under the Americans with Disabilities Act.
(QuickTime; also available on ITunes)
http://dll.ada-podcasts.com/shownotes/DLLPod20.php
•
Disability Law Lowdown 21 - Employee Conduct
Discussion of the EEOC’s guidance on applying conduct standards to
employees with disabilities under the Americans with Disabilities Act.
(QuickTime; also available on ITunes)
http://dll.ada-podcasts.com/shownotes/DLLPod21.php
•
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Resources
• ADA Amendments Act
http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=110_cong_bills&docid=f:s340
6enr.txt.pdf
• EEOC ADAAA Notice
http://www.eeoc.gov/ada/amendments_notice.html
• Disability Law Lowdown ADAAA Episode
http://dll.ada-podcasts.com/shownotes/DLLPod18.php
• AHEAD Government Relations
http://www.ahead.org/resources/government-relations
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Resources
• DBTAC Webcast Episode Archive
http://www.ilru.org/html/training/webcasts/archive/2008
/11-19-AM.html
• ADA Legal Webinar Archive
http://www.onlineconferencingsystems.com/sedbtac_1
/102808/
• American Association of People with Disabilities
ADAAA Site
http://aapd.com/AAPDRedesign/Advocacy/Legislative
Prioritiesfront.html
• Georgetown University’s ADA Archive
http://www.law.georgetown.edu/archiveada/
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CITATIONS
• Southeastern Community College v. Davis, 442
U.S. 397, 406, 60 L. Ed. 2d 980, 99 S. Ct. 2361
(1979)
• School Bd. of Nassau County v. Arline, 480 U.S.
273, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987)
• Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)
• Murphy v. United Parcel Service, Inc., 527 U.S.
516 (1999)
• Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555
(1999).
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• Wynne v. Tufts University School of Medicine,
976 F.2d 791 (1st Cir. 1992)
• Bartlett v. New York State Board of Law
Examiners, 970 F. Supp. 1094 S.D.N.Y. 1997)
(Bartlett I); aff’d 2 F. Supp. 2d 388 (S.D.N.Y.
1997) (Bartlett II); aff’d in part, rev’d & remanded
in part, 156 F. 3d 321 (2d Cir. 1998)(Bartlett III);
vacated and remanded, 119 S.Ct. 2388
(1999)(Bartlett IV); aff’d in part & remanded, 226
F. 3d 69 (2d Cir. 2000)(Bartlett V); 2001 WL
930792 (S.D.N.Y. Aug. 15, 2001) (Bartlett VI)
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