New Disability Discrimination Provisions Go Into Effect January 1, 2009

By Craig M. Brooks

Legal changes, effective January 1, 2009, significantly expand the number of people covered by the law prohibiting employment discrimination on the basis of a person’s physical or mental disability. Congress has expressly directed the EEOC and the courts to open up the law’s protections to more people, overriding several pro-employer Supreme Court decisions to accomplish this. Employee claims will increase.

The existing law in general requires employers to accommodate employees’ substantial physical or mental impairment. In addition to expanding the scope of what is considered a substantial impairment, the most dramatic change starting in January provides additional protection to persons who do not have (and are not regarded as having) substantial impairments. As a result, employers need to be more mindful and informed in order to make the right decisions about and avoid liability regarding employees with disabilities.

Description of Changes

The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualifying persons with a disability and requires employers to make reasonable job alterations if that allows for successful performance of the essential job functions. The definition of disability under the ADA remains the same:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

45 U.S.C. § 12102.

But, the amendments expand the definitions of several key terms which will result in many more employees being protected by the law.

A. Substantially Limits
Although the amendments do not define the term "substantially limits," they do expressly reverse the U.S. Supreme Court’s decision in Toyota Motor Mfg, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which held that to be substantially limited in performing a major life activity under the ADA, "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives." The amendments also reject the Equal Employment Opportunity Commission’s (EEOC) definition of "substantially limits" as "significantly restricted."

The amendments now mandate a broad, expansive interpretation of the term "substantially limits" in favor of coverage. The EEOC is charged with revising the portion of its current regulations that defines the term "substantially limits" to be consistent with the new amendments’ mandate.

B. Major Life Activities
The amendments, for the first time, provide a lengthy illustrative list of major life activities which include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function, such as functions of the immune system, normal cell growth and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. While court decisions have already covered many of these items, the amendments will protect more individuals.

C. Episodic Impairment
The amendments specifically state that an impairment that is episodic or in remission is a disability even when inactive, "if it would substantially limit a major life activity when active."

D. Mitigating Measures Ignored
The amendments reject the U.S. Supreme Court’s decision in Sutton v. United Air Lines, 527 U.S. 471 (1999), which held that mitigating measures must be considered in determining whether an individual has a disability. Now, mitigating measures, such as hearing aids, medication, prosthetics or other medical equipment or supplies must be ignored by an employer when determining whether an employee meets the definition of disabled (they still must be considered in determining what accommodations are appropriate). The amendments make an exception for ordinary eyeglasses and contact lenses only, which may be considered in determining if an individual has an impairment that substantially limits a major life activity.

E. Regarded As Disabled
The biggest change in the law concerns the protection given to individuals who are "regarded as" disabled. The ADA, since its passage in 1990, has protected not only those who actually have a substantially limiting physical or mental impairment (or a history/record of such an impairment), but also those who are regarded by their employer as having a substantially limiting impairment even if it turns out the employee’s impairment is not that limiting. In other words, even if the employee’s actual disability turned out to not be serious enough for protection under the law but the employer acted on a stereotype, misperception, or misunderstanding that unduly exaggerated the extent or effect of the individual’s impairment, the employee was still protected from discrimination. While this has always been a potential trap for careless or uniformed employers, there was still an important defense if the employer could show that, while they regarded the employee as having an impairment, they did not regard it as being an impairment that substantially limited the individual’s activities.

The new law, as of January 1, 2009, largely removes this defense by providing that the law’s discrimination provisions protect not only persons regarded as having a substantially limiting impairment (as was true under the old law) but they also protect people regarded as having a non-substantial physical or mental impairment, excepting only a temporary and minor impairment. Temporary is defined as having an actual or expected duration of less than six months; minor is not defined by the new law. While no accommodation is due, individuals having or regarded as having non-substantial limitations, such individuals will be protected against discrimination because of their impairment (whereas in the past and through December such individuals had/have no protection under the law). A great many more people will be covered under this "regarded as" discrimination protection. The only persons who will be excluded from this category are those persons whose impairment can be shown to not only be minor but also temporary.

F. Reverse Discrimination
The new amendments state that reverse discrimination claims are not permitted. In most areas of employment discrimination it is unlawful to give preference to an individual because of his/her race, sex, national origin, etc., including giving preference because of an individual’s minority status (i.e., reverse discrimination). Starting January 1, unlike in these other areas of employment discrimination law, employers can give preference to persons with qualifying disabilities without incurring liability.

Recommended Action

Because of this significant expansion in the law, employers must get ready to avoid being swept up in the flow of new claims. Our principal recommendation is to train supervisors and managers to know enough to be aware of these issues and to get help when they arise (i.e., to know when to contact HR and employment law counsel). Some documentation, such as job descriptions and policies, should also be reviewed; but the main focus should be devoted to providing training and support to supervisors and managers in their responsibilities and options.

Deciding how to handle a particular disability situation requires informed judgment and guidance. Automatic or canned approaches are often contrary to the law’s requirements. Determining whether an individual qualifies for protection, as well as what steps to take for persons who are protected by the law, requires an assessment taking into account things such as the individual nature of the employee’s medical situation, the nature of the job duties, and the needs and options open to the employer. No one person has all this information, so consultations are required (e.g., with physicians, human resources managers, and legal counsel well-versed in this area). The advantage employers can maintain is to educate their supervisors and managers to be aware enough of these issues to know when to ask for help. They should also be trained in the things not to say or ask. Particularly with the "regarded as" disabled claims, careless or loose lips do sink ships.

Perhaps most importantly, managers and supervisors should be made aware that there are numerous options available to them that allow for both compliance with this law and meeting the aims of the business or organization. By providing them a straightforward, non-technical explanation of this law and its new amendments, supervisors and managers will save their organizations a lot of money and headaches by understanding why it is important to get help early, thereby avoiding liability while still achieving organizational goals. This training to develop understanding in the managers that it is in their best interest to get these issues properly addressed early on is the greatest motivator for their taking the right steps to avoid liability. We pride ourselves here at Houston Harbaugh, P.C. on doing training such as this in clear, non-technical terms. Please let us know if you would like our assistance with this training, and/or our liability avoidance guidance for both policies and particular situations as they arise.