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A New Day Under The ADA:
On September 23, 2009, The EEOC Published Its Proposed Regulations
Are You Ready For The Enforcement of This New Law?
The Americans with Disabilities Act Amendments Act (ADAAA), effective January 1, 2009, and its proposed EEOC regulations, published on September 23, 2009, may have created the most ambiguous employment law. Now, more than ever, an employer’s lack of knowledge could result in unnecessary or abusive litigation. In 20 pages, the EEOC’s Proposed Rule, and the ADAAA, effectively reverse almost 20 years of court decisions and employment practices.
These amendments emphasize greater protections for impaired individuals by expanding the list of “major life activities,” eliminating consideration of mitigating measures, including impairments that are episodic or in remission, and expanding coverage under the “regarded as” prong of discrimination.
The ADAAA and the EEOC’s Proposed Rule emphasize that the definition of “disability” will be interpreted broadly and favorably to any individual claiming disability discrimination. Therefore, both also focus the analysis on whether disability discrimination occurred, and not the threshold issue of whether an individual meets the definition of “disability.” The issue becomes whether or not there is any evidence or inference based on circumstantial evidence (timing of the decision, truthfulness of the employer’s articulated reason for the adverse decision), to link the decision to the individual’s impairment. Stated another way, how objective, legitimate, and non-discriminatory is the employer’s decision not to hire, transfer, promote or terminate the individual, and is there any argument the individual can make that a “disability” was the reason, basis or cause for the decision? The key question is, are those two issues unrelated—is the decision unrelated to the “disability?”
Given the new focus, employers will often need to bypass questions regarding the ADA’s coverage and ask questions pertaining to liability, such as, why did we make the decision? If the “disability” disqualifies an individual for employment, can we prove it? Will the individual admit it? Is there an issue of accommodation and are the requests reasonable? Is there an issue of undue hardship or a direct threat associated with any accommodation? Can we prove these arguments with facts and the individual’s admissions? When we have a dispute, how will we resolve it? If issues remain, what can we prove?
Consider these scenarios:
  1. An employee's spouse loses a job, resulting in financial strain on the employee. The employee becomes depressed and begins to suffer from loss of sleep and appetite. Is this employee protected by the new ADA? What about an employee who claims depression because of alleged race, gender or sexual harassment discrimination? What about an employee who exhibits depression because of a divorce and has numerous mental and physical symptoms? What about an employee who has dyslexia?
  2. What if an employee merely exhibits symptoms of a condition, for example, facial tics or lesions, or takes medication? Is the employee protected even if the employer is not aware of the underlying impairment? When are impairments transitory or minor conditions and not protected?
Employers should prepare now to understand these significant developments:
  • Same text, new standard; do you know the new rules for establishing the three prongs of the law: a substantial limitation, record of a disability, regarded as being disabled? The EEOC says the analysis should be based on common-sense and not require an exacting or statistical analysis. What does that mean and who makes that decision?
  • What is not covered if major life activities now include bodily functions, like normal cell growth, endocrine, and reproductive functions, etc.?
  • How can you make adverse employment decisions using performance and conduct standards without triggering the entirely newly expanded “regarded as” prong of this new law? Will the analysis of “essential functions” become more important? How do you evaluate qualifications—quantitative and qualitative standards?
  • Will you rely on the undue hardship or direct threat defenses more often? Do you know how to establish these defenses? What is a “reasonable accommodation?”
Are you prepared and can you answer these questions?
The language of these three prongs of the ADA have not changed; however, the application and interpretive guidelines of the EEOC have made sweeping changes. The major changes include the following:
  1. Substantial limitation no longer means significant or severe restrictions but, rather, there is now a lower standard in which an impairment must merely limit an individual in performing a major life activity or function, which most people in the general population can perform with little or no difficulty.
  2. Added new items to the list of major life activities, which now includes, but is not limited to:

    29 CFR § 1630.2(i) Major Life Activities are those basic activities, including major bodily functions that most people in the general population can perform with little or no difficulty. Major life activities include, but are not limited to:
    1. 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; and
    2. The operation of major bodily functions, including functions of 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. For example, kidney disease affects bladder function; cancer affects normal cell growth; diabetes affects functions of the endocrine system (e.g., production of insulin); epilepsy affects neurological functions or functions of the brain; and Human Immunodeficiency Virus (HIV) and AIDS affect functions of the immune system and reproductive functions. Likewise, sickle cell disease affects functions of the hemic system, lymphedema affects lymphatic functions, and rheumatoid arthritis affects musculoskeletal functions.
  3. Rules of construction are to be favorable to employees and the analysis should be based on a common-sense review that does not require an exacting or statistical analysis.
  4. When determining whether an impairment is episodic or in remission, the impairment is to be evaluated in its active state.
  5. The new law eliminates the consideration of all mitigating measures, except for ordinary eyeglasses or contact lenses, when evaluating a disability claim.
  6. The new law clarifies the “record of,” or second, prong of the ADA. The EEOC, for example, provides that an applicant who previously received treatment for prostate cancer and whose doctor indicated that he no longer had cancer nevertheless has a “record of” a substantially limiting impairment.
  7. The “regarded as,” or third, prong of the ADA no longer requires evidence that the employer perceived an individual to be substantially limited in a major life activity. The mere knowledge of an impairment that is not transitory (less than six months duration) and minor (such as the flu), can now be the basis for an employee claiming that he or she had been subjected to disability discrimination. The EEOC’s proposed regulations go so far as to explain that if an employer takes any action based on a mere symptom, that such action would be prohibited under the ADA. The EEOC states that, for example, if an employer knows that an employee is taking medication that the individual uses presumably because of an impairment, that the knowledge of the use of medication, in and of itself, could result in a finding of discrimination even if the employer is unaware of the underlying impairment.
Impairments as disabilities under the new law
The importance of this new law and its proposed regulations is to de-emphasize the review of what impairments are disabilities. While that is still a question, it has been minimized because of the broad interpretation to be given to the term disability. Therefore, the new law shifts the focus that should be given in review of a disability case. Now, employers should review the following:
  1. What are the essential and non-essential functions of the job in question? Is each function a legitimate employer’s interest and job related?
  2. Is the individual qualified to meet both the quantitative and qualitative essential elements of that job?
  3. If not, are there “reasonable accommodations” that will allow the individual to be qualified?
  4. Will a reasonable accommodation create an undue hardship for the employer?
  5. Will a reasonable accommodation create a direct threat to the health and safety of the employee or others?
These last five issues have not been as important in the past under the old law and have not seen much litigation because often (perhaps 80% of the time) individuals could not establish a disability under any of the three prongs of the law. That has changed! The EEOC has stated that they will seek vigorous enforcement to protect more individuals because of their impairments and their disabilities. Are you prepared for the new enforcement?
Learn more to be prepared!
To ensure that employers understand their obligations under the new law, I am conducting a one-hour teleconference and a series of live, half-day programs. The programs will discuss strategies and tactics for complying with the new rules and include question and answer sessions to illustrate how participants can deal with this law in real situations. Without proper training, the provisions of this law could remain unclear and ambiguous, resulting in employers having to defend unnecessary and abusive litigation.
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at:
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   

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