The ADA Amendments Act (ADAAA) and Its Implications for the Future of the ADA Presented by Arlene Mayerson >> JACQUIE: Good afternoon everyone. Welcome to today's webcast. The ADA Act and its Implications for the ADA. Our presenter is Arlene Mayerson. She is the Directing Attorney of the Disability Rights and Education Fund, DREDF and is one of the leading experts in disability rights law and has been a key adviser to both Congress and the disability community on the major disability rights legislation for the last three decades, including the Handicapped Children's Protection Act, the Individuals with Disabilities Education Act, and the ADA. She's testified as an expert witness before several committees of congress. You can read more about Ms. Mayerson. This webcast today is sponsored by the National Institute on Disability and Rehabilitation Research, NIDRR, who funds your webcast today. I am your moderator, Jacquie Brennan with the southwest DBTAC. I will be assisting today's presentation. For those of you listening to the webcast today to submit questions click your button on your screen or E-mail your questions directly to swdbtac@ilru.org. If you have any technical difficulties call us at (713)520-0232. There are documents related to today's webcast that are available on the website and if you need a different accessible format for those E-mail us at swdbtac@ilru.org. We know this is a very popular webcast today because this is a topic that really the disability community and the HR community and lots of others have really been buzzing about. So I'm really anxious to go ahead and turn it over to our presenter. So thanks again everybody for joining us and I turn it over to you, Arlene. >> ARLENE: Thank you everybody for joining into this webcast. I am going to go through the amendments to the American's Disability Act that affect the definition of disability. Give you some background on how we got to the result we did in the amendment and perhaps have some time to talk about the future. Okay, so starting out, why was there a need for amendments to the definition in the Americans with Disabilities Act? Let's start back with the document that should be up on your screen, which is it says Americans with Disabilities Act 42 U.S.C. Section 12102 Section 2. And this was the original, nonamended, Americans with Disabilities Act definition, which was pretty simple and came from the prior law Section 504, the 1973 Rehabilitation Act. And it said the term disability means with respect to an individual a physical or mental impairment that substantially limits one or more of the major life activities of such an individual. A record of such impairment, or being regarded as having such an impairment. The original drafters of the ADA in 1990 felt comfortable with that definition because it had been the definition under the Rehabilitation Act, which applied to recipients to financial assistance and had been interpreted broadly. The first thing that happened that gave rise to where we are now is the EEOC, the agency in charge of putting together regulations under the 1990 Americans with Disabilities Act, decided to really hone in on the definition when they came up with the regulations. And in particular to hone in on the parts of the definition that says substantially limits one or more major life's activities. Under 504, the cases brushed over that assuming that if you had an impairment it probably limit your ability. There wasn't a concentration on that aspect. But the EEOC regulations that are printed under this regulation, and I hope a document that you are seeing on your screen or holding or whatever, the EEOC regulations defined substantially limited as unable or significantly restricted as the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner or duration under which an average person in the general population can perform the same major life activity. And had various factors to make that determination and the EEOC then went on to give even further requirements for the determination whether someone was substantially limited of working and said that substantially limited and working means significantly restricted in the ability to perform a class of jobs or broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Well when these regulations came out, the EEOC regulations for the 1990 ADA the advocacy groups, the people around the country who are concerned about this regulation filed comments on behalf of 504 disability groups saying that this was going to be unduly burdensome. It was not the intent of congress to have all these requirements about substantially limited and that it was a very bad idea. Of course, those comments did not have the effect we wanted. In fact, the regulations ended up with this task, and as we will see, a very difficult task whether someone is substantially limited in the major life activity in any major life activity and most difficult in the life activity in working. So what happened after the regulations came out, the ADA was the law of the land. The ADA defined that law, there was a very big effort on the part of the employer's lawyers to train their lawyers about how to defend these cases. And for the first time, there was a lot of emphasis on filing motions to dismiss on the basis of the person was not protected by the ADA because the person, even with an impairment, was not substantially limited and to really use the EEOC regulations to their maximum extent to show that, well, this person has an impairment. That might have been the reason we didn't hire the person but that does not mean that the person is covered or protected by the ADA because that person doesn't fall under the definition. That person is not substantially limited in a major life activity. So there was an accumulation of lower court cases that 90% of the employment cases were being dismissed on this basis that people with impairments who had been subjected to impairment based on their impairment did not even have a day in court because they were being dismissed as not being protected by the act because they were not people with disabilities because of this very high bar that was being set for the substantially limited requirement. So as happens, these various cases ended up coming up to the Supreme Court. And there were several cases that were particularly harmful to the definition of disability confirming many of these lower court cases that have taken a very restrictive reading of who was disabled under the ADA and therefore who was protected under the ADA. Let me say as an aside right now that the ADA had a two-step process. First, you have to show you are a person with a disability under this definition. And if you are determined by court not to be, you never get to show that you are qualified. So we are talking about a situation where the person might be extremely qualified for the job with or without an accommodation and they did not get the job because of their impairment. They still have to pass the threshold test to be a person with a disability to raise those issues in court. So this is a threshold test and if you don't get through it, you don't get to show that I am qualified and no reason for me not to have that job. So it's very, very important. So the cases that went up to the Supreme Court, there's a group of cases that are called the Sutton trilogy. Basically, these cases involved twin sisters that had very severe myopia who were rejected from United Airlines because of their vision requirements. Their vision requirements required a certain degree of vision with uncorrective -- sorry, corrective. The fact that they were extremely myopic without their glasses but with their glasses were able to see. The second case involved, it was called the Murphy case and it involved a mechanic who had high blood pressure and the third case was Albertson v. Kirkingburg and that was someone who had monocular vision. The reason why they are a trilogy and heard together because they all raise a similar issue. And the issue was in determining whether an individual is substantially limited in a major life activity, that was the question before the court. And again, we said the threshhold question to whether you can go to next step to see if you are qualified. When they are making that determination should they make that determination looking at the plaintiff in their mitigated state or unmitigated state? What does that mean? It means for the twins do you decide substantially limited in a major life activity with their glasses on, that would be their mitigated state. Or with their glasses off, that would be their unmitigated state. With Murphy, do you decide that he is substantially limited in a major life activity considering that he takes medication for his extremely high blood pressure or did you consider it without the medication. Again, with the medication the mitigated state. Without the medication, the unmitigated state. The next case, Kirkingburg, even more difficult to comprehend that people with monocular visions have their own ways in their brain to kind of compensate for the effects of the monocular vision. The long and short of it was the Supreme Court decided, for a variety of reasons, that in making the determination whether someone was substantially limited in a major life activity you consider that person in their mitigated state. So with the twins you consider them with their glasses. Well, with their glasses they see the same as people that don't have any kind of visual impairment. So they said these twins are not qualified -- sorry, are not disabled under the statute. They do not have a disability, therefore, they can not bring a case under the ADA and therefore we will never -- whether or not they are qualified to be airline pilots. And the same with the other two plaintiffs. The rule that came out of that trilogy of cases and this was in 1999 was that when determining whether an individual was substantially limited in a major life activity, the court, the Supreme Court, that's the last arbiter of this issue, decided that you decide that looking at that person with their mitigation. So is someone who has an amputation, for instance, you look at that person's limitation and their major life activities with their prosthesis. And someone with diabetes you look at them if they are following their regiment with their exercise and eating, et cetera. So basically what became of that was a Catch-22, which is if a person's mitigated state made them perfectly able and completely qualified for a job, chances are they were in fact, the people that would not be covered by protection under the ADA. So in fact, I had felt that these lower court decisions were so absurd that the Supreme Court would never go along with it. And the Supreme Court not only went along with it, but really established a standard that the lower courts just continued to use to exclude lots and lots and lots of people that were intended to be covered by the original ADA. The next big development that happened was the Williams v. Toyota case. That was in 2002. That case involved a woman who had carpal tunnel syndrome. She had a lot of issues around pain and tendonitis and other things that affected her ability to raise her arms and to do the job she was to do on an assembly line at Toyota motor company. That case involved the issue of what is substantially limited? How high a bar is it for someone to satisfy did not involve mitigating measures because that was not really something she could use. And in that case the Supreme Court decided looking at the statute that substantially limited was a very, very high bar and that it was meant to be a strict standard that only certain people could go through. Those people, according to the Supreme Court, were people who were so substantially limited they could not do daily functions. And in particular, the court referred to grooming kind of functions. Bathing yourself, feeding yourself, brushing your hair. Things that were really basic. And the court said is that this strict standard needed to be met by showing that you were substantially limited in major life activities that were basic to everyone's life. So this is another real blow to the ADA and to its intent to be a very broad comprehensive statute to cover people with a variety of disabilities. So in 2002, these big blows happened and you can imagine -- and many of you may have been involved -- there were a lot of different forums and meetings. And council on disability held for a couple years meetings about what to do about this. But it was considered a really hard sell in the congress and given the president and et cetera. So it was only in the last year, basically, that the possibility of actually presenting a bill in congress that could actually pass that would be bipartisan was strongly being worked on by many advocacy organizations. And right before the end of the summer session last year, the House introduced the bill Hoyer and Sensenbrenner presented. Why we have a republican cosponsor that helped and the senate introduced the bill that Harkin and Kennedy introduced along with specter. Through many, many, many, many negotiations and machinations, we have the ADA Amendments Act. It was originally the ADA Restoration Act. That's what we're going to turn to now. On your screen or in your hands I hope is a document called the ADA-AA webcast outline. This is the outline I am going to be using and I thought I would share it with you so you can follow along. Also a document that is a text as well. I hope you have that and can follow along easily. So if you look to the ADA-AA, the definition of disability. The first two prongs of the definition are the same as existing law. So again, the term disability means with respect to an individual a physical or mental impairment that's substantially limits one or more life activities of such individual a record of such an impairment. So the first question you might ask is: Well how does that fix the William's case? And by the way, I also have a document in there, the materials today which compares the people covered under 504 and the people excluded under the ADA. We were talking about a situation where people with this type of variety of disabilities were being excluded under the ADA. Epilepsy, mental disabilities, multiple sclerosis, vision impairments, heart disease, depression, HIV infection, asthma, et cetera. Back injuries. So why is the ADA-AA on its face identical in the first two prongs of the definition as it exists? And how does it intend to change what the courts do? Well, the answer lies -- it's somewhat unusual legislative tact that was taken. The decision was made to keep the definition the same, substantially limits. Not add any new words. In the House new words were added. But in the Senate they kept the word the same, substantially limits, but to tell the courts what was meant by those terms and how they got it wrong. If you look to section 4 of the two definition, the ADA-AA, you will see that there are under the definition, rules of construction regarding the definition of disability. Rules of construction are what courts use to interpret statutes and it says 4 (A) and (B). The definition of disability in this act shall be construed in favor of a broad coverage of individuals under this act and to the maximum extent by the terms of this act and, (B), the term substantially limits should be interpreted consistently with the ADA amendments acts of 2008. B is really the key. Statutory reference because many statutes have findings and purposes that you just kind of blow over and get to the actual words of the statute. Well in the ADA-AA, the real meat of the statute, the real remedy that we were seeking is all in the findings and purposes. It was thought very important that in the actual words of the statute that there was something to say to refer back to the findings and purposes. To make it clear that congress intented the courts to (inaudible) as statutory language. So then you go to the findings and I hope in the actually ADA. The findings are all about how the courts -- in Sutton versus United Airlines and it's companion cases had narrowed the scope intended to be afforded by the ADA thus eliminating that. And about the lower cases and how the courts have been basically interpreted the ADA, the original intent of the ADA to be much more narrow than congress had intended. Then I think, particularly, finding No. 8 is important that the EEOC read that defined substantially limited as significantly restrictive was inconsistent with too high a standard. Then you go to the purposes section, B. What are the purposes of the act? And again, the purpose of the act is to make it very clear that congress thinks the Supreme Court got it wrong in the Sutton trilogy and in Williams and that the EEOC got it wrong in their regulations and that they will, in fact, revise the regulation to be consistent with the statute. Okay, so on substantially limited, again, most of what you will find as the remedial part of the ADA-AA is found in the purpose and findings. That is very unusual, which is why there is a section in the statute itself under rules of construction which specifically say substantially limited should be interpreted consistently with the findings and purposes of the ADA. I am going to go through the other major change and then open to questions. The next big thing of course was this mitigating measures issue. The ADA-AA, this is an area where the ADA-AA is exextremely explicit and it says you determine whether an impairment substantially limits a major life activity without regard to the ameliorative effects of mitigating measures. Mitigating measures is defined extremely broadly. So if you look under E 1 L -- sorry. E 1, 2, 3, 4 that mitigating measures is any medication, medical prosthesis and assistive technology and adaptive neurological functions, which really throws everyone for a loop but that number four was put there because of a case where the Supreme Court said you take, in fact, mitigations of the brain might provide. That was very confusing as how you would apply that, but people felt with the better side of caution to include a four. Don't consider anything your brain might do to adapt. So the mitigating measures is very complete. That the courts should not consider any mitigating measures even if the disability is in remission, which is kind of a takeoff of the mitigating issues that the courts should consider the disability whether itself in remission. It's trying to get to the idea of don't consider anything that is assisting the person to adapt, assisting the person involved to actually be qualified for this job, don't look at any of those things. Look at the underlying disability. So the mitigating measures issue was very directly addressed. The one exception to that is this issue of eye glasses because in the Sutton case the case involved eye glasses but there was a lot of concern by the business community that not everyone with eye glasses should be covered by the ADA and of course, our retort to that was well, not everyone with eye glasses is going to be discriminated against based on their uncorrected vision -- based on their corrected vision, sorry. So a compromise that was made was ordinary eye glasses and contact lenses could be considered. The only mitigating measure that can be considered and later on in the statute under discrimination but if that's the reason you are discriminated against you can challenge the reason. That's kind of an exception that I won't go into more unless there are specific questions about that. There are other aspects that I'm going to go through about the statute and about the changes such as major life activities regarded as prong and the availability of reasonable accomodations but I thought I would break right now for a question just on what I have covered because what I haven't covered we will wait for questions on that. >> JACQUIE: Well I don't know if you are going to get this but we have had several questions and they are all similar so I'm going to put them into one question. But it really has to do with going through whether this law -- we know it goes into effect January 1st, and there are some questions whether it will be retroactive and whether people who might have filed recently and are not seen by the EEOC as fitting under the definition but they would fit under it on January 2nd, should they refile? How should that sort of thing be handled in terms of the 180 or 300-day statute on that? >> ARLENE: I was going to cover that at the end. But that's okay. I could just say that it probably will not be retroactive. There probably will be case law on it. There are several Supreme Court cases that make one leery of whether it will be applied retroactively. However the cases that will be brought that it's not a new clarification but an old one. There's also some continuing violation, so certainly if it's continuing the new standard could be applied and a new complaint could be filed. So I think that it's a little up in the air. I don't think it's retroactive per se but I think there are arguments that can and will be made about why it should be applied retroactively in given cases. >> JACQUIE: This question may have actually come in before you talked about this, but it requests that you talk about the changes in the findings and purposes and how that might be used by plaintiffs attorneys to affect those changes in bringing suit. >> ARLENE: I am going to assume that did come in before. I hope that's one of the main things I just covered. Normally findings and purposes are not considered the same as statutory language and the hook in the ADA restoration act or amendments act is that there is in the statute itself a rule refers back to the findings and purposes and that's how we will use it in litigation and that's what we're hoping will prevail. It shows the intent and to the extent that courts will say why did they change the word? That's our biggest problem potentially in the future. But as far as court following the intent of congress the rules of construction refer back to the findings and purposes should really help. >> JACQUIE: And then one last one before you pick it up again. A California state court case last month, which was Turner Association of American Medical Colleges denied accommodations for people with learning disabilities with the exam and would it turn out differently if the ADA-AA was in effect? >> ARLENE: Let me go on and get back to that because there are things that I will say now affect that. As far as I have said so far the one thing that's very important for people with learning disabilities to focus on is in the mitigating measures part of the act, which I went over E 1. The mitigating measures was done very much to cover as many disabilities as possible but trying to cover people with learning disabilities and using auxiliary aids or adaptive neurological modifications. That was a big problem and I think they are probably referring to the Juan case that people with disabilities that do for themselves that make them successful in their academic performance has been used against them in prior cases. So one of the key modifications in the statute that we will be relying on for cases for plaintiffs with learning disabilities is the mitigating measures. The mitigating measures is key and adaptive neurological -- is key by the advocates who worked on this bill. Anything else? >> JACQUIE: No, you can go ahead now. We will put the rest later. >> ARLENE: So and this is a good way to get into another change that was made. Substantially limited and a major life activity. Major life activities, major life activities has been a matter of regulatory definition under the ADA 1990 in the statute -- it was put in the statute in the ADA-AA not exactly in the same way and so there are some differences if you look at two major life activities that includes but is not limited to, that's a very important part, caring for yourself, eating, sleeping, standing, et cetera. There's a list. It's not identical but the list is meant to be broad. But the key difference, the key difference between the ADA 1990 and its regulation and the ADA-AA is the addition of major bodily functions as a major life activity. So people might say, what is that all about? What that's all about is through the various negotiation processes, at one point there was in a statute a per se list. And that list would be a list of disabilities where people were just automatically covered. They didn't have to show any substantially limited activity. It was just assumed that coverage should be granted to people with these disabilities. That did not succeed. Did not continue to go through with various objections from both sides. What came -- when that per se list was eliminated from the statute, there was a lot of concern by people. Let's make sure everyone on it would still be covered. One thing that came up is a lot of people who have illnesses or diseases or internal impairments that are not necessarily manifested in activities of daily life that you see. Like your kidneys are not operating correctly and your endocrine systems is not processing sugar. And there was a strong concern that people with these types of conditions would also be covered by the Americans with Disabilities Act and not necessarily showing that they couldn't then walk, see, hear, sleep, lift, bend, et cetera. So for the first time this concept, this is brand new concept and will be very interesting to see how it works. Major life activities include major bodily functions. And so if you look under 2 B, says for purposes of paragraph one, a major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, HIV infection, normal cell growth for people with cancer. That's a big area where people were not covered under the prior definition. They might have cancer and not limited in what they do. Bowel, neurological, brain, circulatory, endocrine and reproductive. The list is not complete and what is most missing there is neuromuscular bodily functions that have to do with like bending, lifting, et cetera. What's important is these are still modified. Substantially limited in a major bodily function. And how this will be interpreted is, of course, open for question. The intent was that anyone who has a disability certainly that would have been on the per se list or beyond that wouldn't fit into A, of being actually limited in tasks, eating, sleeping, bending, lifting, et cetera, would fall into being limited in a major bodily function. So the major bodily function issue is yet another -- well, let me go back on the learning disability example. Putting into the major life activities reading, concentrating, thinking, learning. Those are obviously very specifically advocated by the learning disability community and major bodily functions adds yet another avenue, neurological, brain functions. So that's a complete answer on learning disabilities. And yes, the idea is the hope is that one would be decided differently but time will tell. Okay. So those are the first two prongs of the definition. Having a disability that substantially limits a major life activity or a record of such disability. Record of being affected by this. So I'm about to go to as regarded as prong so I will stop again to see if anyone has questions on the major life's activities. >> JACQUIE: There were two but you actually covered that. So I think we can go on. >> ARLENE: Okay. So the third prong. The regarded as prong. Regarded as prong originally in 504, actually. Now we're going back to 1977, the idea of the regarded as prong was that it kind of parallels other types of discrimination. That you are not substantially limited, but society treats you as you are. Society puts up barriers. Society limits your opportunities. Like in race, like in sex discrimination. And the idea was, originally, regarded as would be a catch all. If you are not substantially limited, you would be under the third prong because you would have experienced discrimination. What I was saying about the first two levels of discrimination, the first is: Are you a person with a disability? The second is are you qualified? It's kind of regarded as a mixture of those because the idea being that well, I was qualified and not hired so therefore I must be regarded as having a disability. Well it was where a lot of hope was placed in 1977 and again in 1990 and hope was dashed in a major, major way for that prong in particular. Supposed to be a catch-all for those not covered by prong one and two. Instead it was narrowed to a point where it was difficult for anyone to use. The problem was the courts got on to the regarded as as being a subjective opinion of an employer. So that regarded as having substantially impairment. Regarded as the words gave rise to the interpretation that the employer had to regard you as substantially limited. And for the employer to regard you as substantially limited, to prove that you would have to have a real smoking gun, a memo from the employer or use the evidence to show that you were substantially limited but attributed it all to the employer. A complicated area but not meant to be complicated. The main thing that the ADA-AA does very explicitly changes the definition as regarded as and if you are following along on the outline you can see there or in the statute itself but it says -- again, the original ADA said or regarded as having such an impairment. It still says that but it refers down as described in paragraph three and then paragraph three says regarded as having such an impairment. For the purposes of 1 C the definition in the individual meets the requirements as regarded as having such an impairment. If the individual establishes that he or she has been subjected to an act because of a physical impairment whether or not the impairment limits or perceived to limit a life activity. Then there's a B that doesn't include impairments that are transitory. A transitory impairment is an impairment with and actual or expected duration of six months or less. So what is that intended to today? The main thing is that A is intended to convey that someone is regarded as having a disability because of the way they were treated and that you do not have to as in the paragraph, a complainant you don't have to go into the employer's mind, motives. You do not have to show that the employer saw you as substantially limited. But the mere fact that you are discriminated against shows that you were regarded as having a disability. This was meant to address the biggest problems in the prior cases. The biggest problems in the prior cases. For instance, United Airlines case the Sutton case. We didn't regard the plaintiff as substantially limited. We don't think they are substantially limited at all. They can see fine with their glasses. I'm sure they can get a job with another airline. We don't consider them substantially limited but they can get a job somewhere else. Absolutely absurd reasoning for justifying discrimination. It was really convoluted what was happening under the regarded as prong. So what was trying to be added under the ADA-AA was to take it away from what the employer thoughts and the defense of the employer of well, I didn't want to hire them but someone else would hire them so they are not substantially limited in working. And so that is the intent. Now how that's going to work is going to be up for grabs, of course, because it's a really new definition. It's meant as a clarification of the intent of the old definition but it's also like a new explanation. I think it's pretty explicit. Hopefully, it will work for what it was intended to. You are regarded as treated in a discriminatory manner. The glitch in that that in broadening regarded as in Title V of the ADA, Title V of the ADA is miscellaneous provisions and that title does not just apply to the definition. It applies to anything that is across the board of the titles and doesn't fit into one of the titles. But in Title V an amendment was put to specifically address the regarded as prong. In my outline it's on the last page H. Reasonable accomodations and modifications. Under Title I and Title II, a coverd entity, a public entity and anyone who owns, leases or places accommodations under Title III need not provide reasonable accomodation or a reasonable modification to policies, practices and procedures to someone who meets a disability in section 3 (1) solely under subparagraph (C) of such section. What does it mean? It means that the way you fit under the definition is only through the regarded as prong. You can't get any kind of accommodation or modification. So I consider that extremely troubling. Extremely concerning. The answer to our concerns, which I will share with you as well, the way the act is now structured, the way the ADA-AA is now structured, people shouldn't have to get their accommodations under the regarded as prong because so many more people, any citizen who needs an accommodation will be covered under the first prong because of the broadening of the definition. That is what I hope happens. The regarded as prong, the logic of it, I think, the appeal of it in congress well if you are only regarded as then you won't need an accommodation. I hope that in its inverse if you need an accommodation you are substantially limited. But I just don't know how that's going to work. It could be that people could be limited but not substantially limited. Needed to go under regarded as prong and not get accommodation. That's the worst case scenario. I hope the best case is if you are disabled enough to get an accommodation you should be under the first prong. That might be confusing. I welcome questions about that. And finally all the changes that I just discussed in the definition also apply to the Rehabilitation Act claims. And also what should be clear from what I read about the regarded as prong is that this definition applies, even though most of problems came up in employment, the definition itself, the new definition applies throughout all the titles. So it will apply to employment, public service, public accommodations. So I'm pretty much ready to wrap up if people have any questions about that, I would be happy to answer them. >> JACQUIE: We have a few. This is two separate questions, but there have been maybe a few more that have the same sort of theme. They come from different places. Isn't this new law just going to increase the number of people who claim discrimination? I have a real disability and I use a wheelchair and I'm worried that the new law waters down the coverage for me by letting everyone in. From the other end with the same sort of thing. As an HR director for a large company, I'm scared of this law. I think a lot more people will be claiming disability discrimination even though we do everything we can to avoid discriminating. That one didn't actually ask a question but is sort of the other end of what the other person asked about. If this will increase the number of people claiming discrimination. >> ARLENE: From the inception of section 504 the Rehabilitation Act, which, again, covered discrimination on the basis of disability for recipients of federal assistance and of course the ADA applies to public accommodation. But the concept has always been the same. It was never meant to be a law that was like a benefit for them. Like a law that provides people like a monthly income. It was never intended to be a law that was for the quote unquote truly disabled. It was never meant to be only for the most severely disabled? Why? Because what congress found is that people with very wide variety of disabilities were subject to adverse actions or being excluded or being unemployed based on those conditions. And whether or not the person even themselves considered themselves even to have a disability, they would find that they were being excluded from employment because of some kind of impairment. And the type of impairment like other discrimination law, race, sex, et cetera wasn't as important as the fact that the society was not willing to accept people. Was putting stereotypes and barriers in front of people based on a whole variety of impairments. So the ADA-AA doesn't at all change that paradigm that was established way back in the 70s, which was that we want to look to see what kinds of barriers are in place in terms of barriers and remove them. That's the answer to the person who uses a wheelchair. It shouldn't in any way diminish. What some people are worrying is attaching the term disabled to people who have impairments who are not as obviously limiting. I think from a movement or civil rights point of view there are a lot of advantages that recognize the type of impairment, the type of diagnosis you have, whether it's visible or not visible is not really the basis of how you are treated and therefore should not be the basis of discrimination laws. And as far as the more people will be using this. Well that is our -- our desire is people who are being discriminated against will, in fact, have a vehicle which the ADA has always intended to be. So the ADA-AA really if anything doesn't go as far as the original intent of the 1990. There were a lot of compromises made. The important thing, I think, is it expands the intent of the Rehabilitation Act. In all laws there are going to be claims that are frivolous or shouldn't be there. But for all the claims that are valid, the ADA-AA is trying to give a vehicle for people who have valid claims to go forward because what was the case before the ADA-AA was that people with very valid claims, extremely valid claims like the list of disabilities that I stated before, would just be shut out and not being protected by the ADA. It was the extent to which the cases were much more alarming that people being included who were perhaps on the outer edges. >> JACQUIE: Right. I think that's a really important point because I think people, particularly people who are worried about this that it's just expanding the law so much and a lot of the headlines have been along those lines. New ADA expands definition. It's really just going back to the way it was intended before. It's not just some drastic new thing. It's really just sort of a retro thing going back to the way it was meant to be in the past. >> ARLENE: I think the other important thing is that, very important thing is again, going back to the two-steps in proving an ADA claim that you are protected by the statute. But that doesn't mean you win your case. You still have to show them that you are qualified for the job, to participate in the activity, the government program, et cetera. That you are qualified with or without reasonable accomodation. One thing that came up in the airline case the twins that wore glasses and they have 20/20 vision with glasses. All the questions outside the court is you don't want people with good vision to be pilots? We haven't gone to that stage. We are saying they are qualified or not qualified. We just want them to have a day in court to show if they are qualified or not. I think a lot of times that the news coverage that you are referring to Jacquie, is there's this assumption that if you have coverage, you therefore have some kind of rights. The only right you have is to be able to bring the claim. And then you still have to prove qualifications. >> JACQUIE: You are right. That is really important because I think -- and I think part of why people still sort of look to that is that so many claims were poured out on the basis of, yeah, we might have done that, but they didn't meet the definition of disability to begin with and here's how. So many of the cases that were filed that I needed an accommodation that I didn't get. It quickly became did I meet the definition? The emphasis was there. >> ARLENE: There's really a balance. I think the questions from the point of view from a person who has a disability to feel like maybe the disability is being trivialized to a person in HR to think that everyone is going to be filed and they will be overwhelmed with frivolous claims. Both views were obviously expressed in the congressional deliberations. I think the idea is to strike a balance of fairness for people who have claims that their opportunities have been limited by an impairment will have some vehicle to bring that claim forward. That is basically the intent of disability discrimination laws just like other minorities, race and sex. My race interfered with my opportunities and I want to be able to show that. This is the same now, hopefully, with the ADA-AA. >> JACQUIE: We're getting a lot of questions and this may mean that you want to go over this again. I think that we started out with the assumption that everybody already new a lot about the ADA and had a real good basic knowledge. But the questions are really around specific disabilities. So people are writing in is epilepsy a disability now, diabetes a disability now? These questions have crystallized that. Reproductive, is that a major bodily function and what does that have to do with working? And also, although in the past having a diagnosis is not enough because you have to then show substantially limits. Would the addition of bodily functions make it possible to say that simply by being diagnosed as having diabetes that you are substantially limited. Is this how you see it playing out. >> ARLENE: The law is not written in terms of specific disabilities. It was one of the versions that was rejected. But it does very much have in mind certain groups of people with disabilities in the fixes. The mitigating measure fix is the most explicit and that has in mind people who take medication to ameliorate the affects of their impairment. It is clearly geared for to people with epilepsy, to people with diabetes. To people with mental illness. To people who take some type of medication. Meaning they can function and they are qualified for what they are applying for but without the medication someone with diabetes, for instance, would be in a coma or severely restricted. Someone with epilepsy would be having seizures and someone with a mental illness might be having an episode. So the idea -- the mitigating measure idea is anyone with disabilities should now be covered because the intent here is to look at the person -- if you take away the mitigating measures you are looking at the person as if they are in a coma so they are substantially limited. The mitigating measures is to look at this person in their severe state without the medication. The mitigating measures is also meant for people with prosthetics. People found not to being disabled prior to the disability act because they had prosthetics they can do it. People without mitigating measures would be unable to walk or et cetera. I think those people -- those are the strongest cases for people who are absolutely covered. Even though that's true, epilepsy would be covered because of the mitigating measures just to make sure, extra sure that bodily functions was added for that kind of -- for someone who wouldn't be covered by mitigating measures by for people who are now covered because of the mitigating measures amendment to be extra, extra sure to add the bodily functions should mean that someone with diabetes is a endocrine function. For instance, someone with type two diabetes who is functioning pretty fine with or without any kind of medication, et cetera. Possiblily that could be a question mark. Certainly anyone with type one has a substantial limitation with there endocrine system. Was there something I missed there? >> JACQUIE: I think you got it. >> ARLENE: The thing is there was a very strong desire at one point to have a per se list just to list it. But what happened was, as with any list and they had tried that when they did the regulations in 1977, it became clear quickly that you can't make a comprehensive list. So the idea was to put in generic lists to cover a lot of different situations. So mitigating measures fixes all the people using mitigating measures that otherwise would be substantially limited. Hopefully the substantially limited like carpal tunnel cases would be defined by the findings and purposes. And the bodily functions would help people who have underlying disabilities or impairments that don't manifest themselves outwardly. >> JACQUIE: Right. These two, again, are sort of saying the same thing in a different way. One says since Sutton was a case about eye glasses and the ADA-AA says that it is essentially overturning Sutton, why did they put in a specific exception for eye glasses? How would you argue Sutton after the new regulations are implemented given the language of ameliorative substantially limiting activity. >> ARLENE: That is an anomaly. The Sutton trilogy, again. What it became known as the doctrine whether you consider someone is substantially limited with their mitigating factor. The major overturning Sutton trilogy was to get rid of that overall factor that ended up applying to people with a very wide variety of people with disabilities. But ironically, the hardest sell was the facts of the Sutton case itself. People wear eye glasses because that HR person was expressing -- you can imagine what they were expressing. We get a flood of people. Many people wear glasses. There was so much concern politically about that that -- my retort to that is they are not all cases of being a rare situation. But in any case the political compromise ironically was to take out the facts of the situation of the Sutton case but to overturn the general rule that came out of the Sutton case. And just to add to that, there is a provision in Title V as well, which I didn't cover because it is very specific to the vision issue. But it does say that if you are -- if you find yourself being excluded because of a vision standard, you can, in fact, bring a claim even though you are not ever wise a person with a disability. So it's kind of a very good example of a political compromise. >> JACQUIE: Could you give specific examples of disabilities that would be under regarded as and record of? >> ARLENE: Well, I mean the typical record of types of examples are going all the way back to '77 is someone who has been institutionalized in the past. Someone who has a diagnosis of mental illness in the past. Something that is no longer current. Someone with cancer in remission exceot that now hopefully because of a specific provision in the ADA-AA now goes to the first prong because if someone is in remission you should consider them not in remission. So that's a typical record of. For regarded as, it's supposed to be someone for whom their exclusion is based on an outright policy. And that do not fit into the other two prongs. There was just like -- well let me just stop. The reason I'm hesitating is again our argument on the plaintiff side and complaintant side is going to be narrow because everyone is going to fit under the first prong. But the idea is for someone who has a hearing impairment but they are not considered to have a substantially limited hearing impairment. But there's a policy of the employer: We don't hire anyone with hearing impairments minor or not. That would be the kind of case that would fall under the third prong. Someone who is limited, not substantially limited, and doesn't need an accommodation. >> JACQUIE: Right. I got a lot of questions first about that. You went into it really well when the law first passed about the lack of accommodation for that prong. >> ARLENE: It's very stark and it looks very bad. Again, for instance, our organization definitely fought very hard against that. But I hope the intent of the drafter comes true. Don't worry about it because all these people are worried about fall under prong one. >> JACQUIE: We don't have any other questions sitting here right now. So do you have anything to say in closing before I wrap up? >> ARLENE: I would like to say I wish I could see all of you and see who you are. >> JACQUIE: That's part of webcasting. >> ARLENE: And DREDF is available as a resource for people who want to know more about this amendment act or basically anything else having to do with the ADA that I would urge to the extent there are lawyers on the case and it's important how we build our case law. I would -- we would love to be in touch with people who are planning on bringing a case under this new law. I think that would be very, very good to get as much coordination as possibly to see how this interpretation as it develops. So I urge anyone about to bring a case to get in touch. If we are not able to help you, we can get in touch with someone who would. For those of you who are advocates on the phone on the disability side, I think the next big community effort is going to be the regulations that will be promulgated under this act. We would want to have a very widespread community involvement in that. So keep posted on that. That would be an important way to keep everyone involved. And so I think for the people in the HR departments, it's also I think very, very good to know if this is going to change anything ordinary. But I think it might be a little bit overexaggerated to think it's going to flood HR departments with new departments. >> JACQUIE: I agree. >> ARLENE: So we hope that's true as well. Everything you see is legitimate and it's something you can deal with and should deal with. Thank you very much for your participation. I assume DREDF and website are available and we would love to hear from you. I'm glad for all of your interest. >> ARLENE: Thanks, Arlene. Please feel free to share the archives of today's presentation with your colleagues. They will be available tomorrow at webcast@ilru.org. Don't forget to complete the evaluation on our webcast page. We are always interested in getting your feedback. Thanks to the National Institute on Disability and Rehabilitation Research, NIDRR, our sponsor for today. We hope you will join us for the next webcast on December 10th Access to Medical Facilities. The opinions and those expressed are from the views of presenters. The webcast would not be possible without our webcast team. Rob Dickehuth and his technical expertise and our captioner today, Lauren Kellmann. Thank you for joining us. Have a dazzling day.