Logo: EEOC Trai ning Institute, Learn fr omthe Experts. Presented by: Joe Bontke, EEOC Houston District Office and the Texas Governor’ s Committee on People with Disabil ities. There are several shadow images of indi viduals with disabili ties acr oss the bottom of this slide. Ever ything you wanted to know about ADAAA, but were afrai d to as k! Everything you wanted to know about ADAAA, but were afraid to ask! Joe Bontke EEOC Houston District Office Texas Governor’s Committee on People with Disabilities What’s in your “backpack”? Image of person with a backpack on "Everyone is entitled to their own opinions, but not their own facts.“ own opinions, but not their own facts.“ Daniel Patrick Moynihan Only 18% of PWD are born with it Figure 1. Growth in Disability Prevalence by Age are born with it Figure 1. Growth in Disability Prevalence by Age Prevalence = 4.5715e0.0383*Age R2 = 0.9881 0 10 20 30 40 50 60 70 80 Prevelance (% Disability Prevalence Rate 202428323640444852566064687276808488 Age Source: NIDRR Demographics and Statistics RRTC at Cornell University’s Employment and Disability Institute, calculations from 2003 ACS PUMS file performed by Robert Weathers, 2005. A Few Facts… Types of Charges Filed 33,937 28,372 10,601 3,273 24,582 19,453 954 Race Sex National Origin Religion Age Disability Equal Pay Act Pie Chart showing the Types and number s of Charges filed as follows: Types of Charge: Race - 33,937 Charges filed Sex - 28,372 Charges filed National Origins- 10,601 Charges filed Religion – 3,273 Charges filed Age – 24, 582 Charges filed Disability – 19, 453 Charges filed Equal Pay Act – 954 Charges filed *32,690 Retaliation Charges 95,402 Total Charges Fil ed! 95,402 Total Charges Filed! *32,690 Retaliation Charges Percentage of ADA Charges by Basis (Top 5 Disabilities), 1993-2007 Orthopedic/Structural Back Impairment Regarded as Disabled Nonparalytic Orthopedic Impairment Depression Diabetes 0.00 0.02 0.04 0.06 0.08 0.10 0.12 0.14 0.16 0.18 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research funded by the USDE-NIDRR. Bar Graph showi ng the Percentage of EEOC's ADA Claims byIssue (Top 5 Disabilities), between 1993-2007 . Discharge is byfar the highest r eason for and ADA Cl aimbeginning with .475 and increasing over time to .575 Reasonabl e Accommodation is second highest starting at ,115 and i ncreasi ng over time to .27 Terms / Conditions ends where it began at .18 Harassment began at just above .10 and ends at the .08 Hiring has seen a slight increase starti ng at .08 and at .11 Source : Calculati ons by M. Bjel land, Cornell Uni versity, Employment and Disabil ityInsti tute, using the EEOC IMS fil es, 1993-2007. Research Funded by the USDE-NIDRR. % of ADA EEOC claims by Issue (Top 5), 1993-2007 0.00 0.10 0.20 0.30 0.40 0.50 0.60 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Discharge Reasonable Accommodation Terms/Conditions Harassment Hiring Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research Funded by the USDE-NIDRR. •• WWhhatewAA?'ew itiareat are the5newrulestheEEOCjustthe 5 new rules the EEOC just issuedforinterpretingthenDissued for interpreting the nADA?' •• DothenewDo the new regsregs applyretroactivelytoapply retroactively to previousADAclaims?previous ADA claims? •• WhatareWhat are thethe conditionsthatarestillconditions that are still excludedfromthedefinitionofadisabily?excluded from the definition of a disabilty? ADTripleAAD T riple A •• WhatWhewAA?'ew itiareat are the5newrulestheEEOCjustthe 5 new rules the EEOC just issuedforinterpretingthenDissued for interpreting the nADA?' •• DothenewDo the new regsregs applyretroactivelytoapply retroactively to previousADAclaims?previous ADA claims? •• WhatareWhat are thethe conditionsthatarestillconditions that are still excludedfromthedefinitionofadisabily?excluded from the definition of a disabilty? ADTripleAAD T riple A ADtriAD ssigeds nurynpleAtriple A •• --OnSeptember25,2008,theADAOn September 25, 2008, the ADAAmendmentsAct(ADAAA)wanAmendments Act (ADAAA) wasignedintolaw,itbecameeffectiveonJaainto law, it became effective on Jauary1,2009.1, 2009. •• --TheU.S.SenateandtheU.S.HouseofThe U.S. Senate and the U.S. House of RepresentativesbothunanimouslyRepresentatives both unanimouslypassedtheADAAA.passed the ADAAA. •• --TheADAAAfocusesontheThe ADAAA focuses on the discriminationatissueinsteadofthediscrimination at issue instead of the individual'sdisability.individual's disability. ADtriAD ssigeds nurynpleAtriple A •• --OnSeptember25,2008,theADAOn September 25, 2008, the ADAAmendmentsAct(ADAAA)wanAmendments Act (ADAAA) wasignedintolaw,itbecameeffectiveonJaainto law, it became effective on Jauary1,2009.1, 2009. •• --TheU.S.SenateandtheU.S.HouseofThe U.S. Senate and the U.S. House of RepresentativesbothunanimouslyRepresentatives both unanimouslypassedtheADAAA.passed the ADAAA. •• --TheADAAAfocusesontheThe ADAAA focuses on the discriminationatissueinsteadofthediscrimination at issue instead of the individual'sdisability.individual's disability. •• --ItmaedefinitionIt nsns andann ofokesimportantchangestothmakes important changes to the definition oftheterm"disability"byrejectingtheof the term "disability" by rejecting the holdingsinseveralSupremeCourtdecisioholdings in several Supreme Court decisioportionsofEEOCADAregulationsnd portions of EEOC ADA regulations •• --TheActretainstheADA'sbasicdefinitioThe Act retains the ADA's basic definitio"disability"asanimpairmentthatf "disability" as an impairment that substantiallylimitsoneormoremajorlifesubstantially limits one or more major life activities,arecordofsuchanimpairment,oractivities, a record of such an impairment, or beingregardedashavingsuchanimpairment.being regarded as having such an impairment. •• --However,itchangesthewaythattheHowever, it changes the way that the statutorytermsshouldbeinterpreted..statutory terms should be interpreted.. ADtripleACont.AD t riple A Cont . •• --ItmaedefinitionIt nsns andann ofokesimportantchangestothmakes important changes to the definition oftheterm"disability"byrejectingtheof the term "disability" by rejecting the holdingsinseveralSupremeCourtdecisioholdings in several Supreme Court decisioportionsofEEOCADAregulationsnd portions of EEOC ADA regulations •• --TheActretainstheADA'sbasicdefinitioThe Act retains the ADA's basic definitio"disability"asanimpairmentthatf "disability" as an impairment that substantiallylimitsoneormoremajorlifesubstantially limits one or more major life activities,arecordofsuchanimpairment,oractivities, a record of such an impairment, or beingregardedashavingsuchanimpairment.being regarded as having such an impairment. •• --However,itchangesthewaythattheHowever, it changes the way that the statutorytermsshouldbeinterpreted..statutory terms should be interpreted.. ADtripleACont.AD t riple A Cont . ADA ADAADA ADA Am AmAmen enend ddmen menments tsts Ac AcAct tt • •• Mos MosMost tt s ssig igignif nifnifica icaicant ntntly, ly,ly, t tthe hehe AD ADADAAA AAAAAA … ……. .. • •• dir dirdirect ectects ss EE EEEEO OOC CC t tto oo revi revirevis sse ee t tthe hehe port portporti iion onon of ofof it itits ss regulationsthatdefinesthetermregulations that defines the term "substantiallylimits""substantially limits" ADtAmajorfeactivities"majicabricAAmendmentsAcDA Ame ndment s Act•• expandsthedefinitionof"liexpands the definition of "or life activities" byincludingtwononby including two non--exhaustivelists:exhaustive lists: •• 1.Thefirstlistincludesmanyactivitiesthatthe1. The first list includes many activities that the EEOChasrecognizedEEOC has recognized (e.g.,walking)(e.g., walking) aswellasas well as activitiesthatEEOChasnotspecificallyactivities that EEOC has not specifically recognizedrecognized (e.g.,reading,bending,andcommunicating);(e.g., reading, bending, and communicating); •• 2.Thesecondlistincludesmajorbodily2. The second list includes major bodily functionsfunctions (e.g.,"functionsoftheimmunesystem,normalcell(e.g., "functions of the immune system, normal cell growth,digestive,bowel,bladder,respiratory,neurologl,growth, digestive, bowel, bladder, respiratory, neurologal, brain,ain, circulatory,endocrine,andreproductivefunctions")circulatory, endocrine, and reproductive functions") ADtAmajorfeactivities"majicabricAAmendmentsAcDA Ame ndment s Act•• expandsthedefinitionof"liexpands the definition of "or life activities" byincludingtwononby including two non--exhaustivelists:exhaustive lists: •• 1.Thefirstlistincludesmanyactivitiesthatthe1. The first list includes many activities that the EEOChasrecognizedEEOC has recognized (e.g.,walking)(e.g., walking) aswellasas well as activitiesthatEEOChasnotspecificallyactivities that EEOC has not specifically recognizedrecognized (e.g.,reading,bending,andcommunicating);(e.g., reading, bending, and communicating); •• 2.Thesecondlistincludesmajorbodily2. The second list includes major bodily functionsfunctions (e.g.,"functionsoftheimmunesystem,normalcell(e.g., "functions of the immune system, normal cell growth,digestive,bowel,bladder,respiratory,neurologl,growth, digestive, bowel, bladder, respiratory, neurologal, brain,ain, circulatory,endocrine,andreproductivefunctions")circulatory, endocrine, and reproductive functions") ADAAmADA otheoctct lenleendmentsActAmendments Act •• StatesthatmitigatingmeasuresrStates that mitigating measures ther than"ordinaryeyeglassesorcontathan "ordinary eyeglasses or contases"shallnotbeconsideredinnses" shall not be considered in assessingwhetheranindividualhasaassessing whether an individual has a disability;disability; •• ClarifiesthatanimpairmentthatisClarifies that an impairment that is episodicorinremissionisadisabilityifitepisodic or in remission is a disability if it wouldsubstantiallylimitamajorlifewould substantially limit a major life activitywhenactive;activity when active; ADAAmADA otheoctct lenleendmentsActAmendments Act •• StatesthatmitigatingmeasuresrStates that mitigating measures ther than"ordinaryeyeglassesorcontathan "ordinary eyeglasses or contases"shallnotbeconsideredinnses" shall not be considered in assessingwhetheranindividualhasaassessing whether an individual has a disability;disability; •• ClarifiesthatanimpairmentthatisClarifies that an impairment that is episodicorinremissionisadisabilityifitepisodic or in remission is a disability if it wouldsubstantiallylimitamajorlifewould substantially limit a major life activitywhenactive;activity when active; ADAAmADA subjctedtosubty,ty, unleunendmentsActAmendments Act •• ProvidesthatanindividualeProvides that an individual jected to anactionprohibitedbytheADA(e.g.,an action prohibited by the ADA (e.g., failuretohire)becauseofanactualorfailure to hire) because of an actual or perceivedimpairmentwillmeettheperceived impairment will meet the "regardedas"definitionofdisabili"regarded as" definition of disabilisstheimpairmentistransitoryandless the impairment is transitory and minor;minor; ADAAmADA subjctedtosubty,ty, unleunendmentsActAmendments Act •• ProvidesthatanindividualeProvides that an individual jected to anactionprohibitedbytheADA(e.g.,an action prohibited by the ADA (e.g., failuretohire)becauseofanactualorfailure to hire) because of an actual or perceivedimpairmentwillmeettheperceived impairment will meet the "regardedas"definitionofdisabili"regarded as" definition of disabilisstheimpairmentistransitoryandless the impairment is transitory and minor;minor; ADAAmendmentsActADA Amendments Act •• ProvidesthatindividualscoveredonlyProvides that individuals covered only underthe"regardedas"prongarenotunder the "regarded as" prong are not entitledtoreasonableaccommodation;entitled to reasonable accommodation; andand •• EmphasizesthatthedefinitionofEmphasizes that the definition of "disability"shouldbeinterpretedbroadly."disability" should be interpreted broadly. ADAAmendmentsActADA Amendments Act •• ProvidesthatindividualscoveredonlyProvides that individuals covered only underthe"regardedas"prongarenotunder the "regarded as" prong are not entitledtoreasonableaccommodation;entitled to reasonable accommodation; andand •• EmphasizesthatthedefinitionofEmphasizes that the definition of "disability"shouldbeinterpretedbroadly."disability" should be interpreted broadly. What is Tr uth? Image of person thinking, with a question mar k floating above. What is truth Finished files are the result of years of scientific study combined with the experince of many years of experts. How many “F”s are ther e? Image containing the foll owing text: Finished Files ar e the result of years of Scienti fic Studycombined with the experience of many years of experts. Finished files are the result of years of scientific study combined with the experince of many years of experts. How many “F”s are ther e? Image containing the foll owing text: (There are 7 “F”s highlighted in the foll owing sentence) Finished Files ar e the result of years of Scienti fic Studycombined with the experience of many years of experts. Is your perception sometimes your truth? Is your per ception sometimes your truth? Wh r a CEO Wotstadwithoutot probem.prreLincolnrowouldyoupickfoho would you pick for a CEO position?position? •• CandidateAcannotwalk.HecannnCandidate A cannot walk. He cannstand without bracesthatruntheentirelengthofhislegs;cannotgetbraces that run the entire length of his legs; cannot get outofbed,getdressed,reachthebathroomorgettoout of bed, get dressed, reach the bathroom or get to hisdeskwithouttheassistanceofanotherpersonandahis desk without the assistance of another person and a wheelchair.wheelchair. •• CandidateBhasaglandulardisorderandbacklCandidate B has a glandular disorder and back oblem. Hetakesdailymedicationandoftenusespainkillers.He takes daily medication and often uses painkillers. Hehasbeenhospitalizedninetimesinthelastdecade,He has been hospitalized nine times in the last decade, oncefor19days,acoupleoftimesforaweekatatime.once for 19 days, a couple of times for a week at a time. •• CandidateChasahistoryofdepression.Candidate C has a history of depression. SlideNotes:Slide Notes : CandidateA=Pres.FDR,B=Pres.JFK,C=PsCandidate A= P res. F DR, B = P re s. JF K, C= P e s L incol n WhraCEOWotstadwithoutot probem.prreLincolnrowouldyoupickfoho would you pick for a CEO position?position? •• CandidateAcannotwalk.HecannnCandidate A cannot walk. He cannstand without bracesthatruntheentirelengthofhislegs;cannotgetbraces that run the entire length of his legs; cannot get outofbed,getdressed,reachthebathroomorgettoout of bed, get dressed, reach the bathroom or get to hisdeskwithouttheassistanceofanotherpersonandahis desk without the assistance of another person and a wheelchair.wheelchair. •• CandidateBhasaglandulardisorderandbacklCandidate B has a glandular disorder and back oblem. Hetakesdailymedicationandoftenusespainkillers.He takes daily medication and often uses painkillers. Hehasbeenhospitalizedninetimesinthelastdecade,He has been hospitalized nine times in the last decade, oncefor19days,acoupleoftimesforaweekatatime.once for 19 days, a couple of times for a week at a time. •• CandidateChasahistoryofdepression.Candidate C has a history of depression. SlideNotes:Slide Notes : CandidateA=Pres.FDR,B=Pres.JFK,C=PsCandidate A= P res. F DR, B = P re s. JF K, C= P e s L incol n AmerctAtt subssicanswithDisabilitiesAmericans with Disabilities Act-- DefinitionofDefinition of ““DisabilityDisability”” •• AphysicalormentalimpairmentthaA physical or mental impairment thatantiallylimitsamajorlifeactivity;ubstantially limits a major life activity; •• Arecordofsuchanimpairment;A record of such an impairment; •• BeingregardedashavingsuchanimpairmentBeing regarded as having such an impairment •• But,themeaningofthetermsBut, the meaning of the terms ““majorlifemajor life activitiesactivities”” andand ““substantiallylimits,substantially limits,”” aswellasas well as thedefinitionofthe definition of ““regardedas,regarded as,”” arequiteare quite differentthanundertheoriginalADA.different than under the original ADA. AmerctAtt subssicanswithDisabilitiesAmericans with Disabilities Act-- DefinitionofDefinition of ““DisabilityDisability”” •• AphysicalormentalimpairmentthaA physical or mental impairment thatantiallylimitsamajorlifeactivity;ubstantially limits a major life activity; •• Arecordofsuchanimpairment;A record of such an impairment; •• BeingregardedashavingsuchanimpairmentBeing regarded as having such an impairment •• But,themeaningofthetermsBut, the meaning of the terms ““majorlifemajor life activitiesactivities”” andand ““substantiallylimits,substantially limits,”” aswellasas well as thedefinitionofthe definition of ““regardedas,regarded as,”” arequiteare quite differentthanundertheoriginalADA.different than under the original ADA. PurposesofADAAmendmentsActPurposes of ADA Amendments Act (ADAAA)(ADAAA) •• ToTo restorerestore theADAthe ADA’’sbroadprotectionsass broad protections as intendedbyCongress;andintended by Congress; and •• TorejecttheSupremeCourtTo reject the Supreme Court’’sviewinthes view in the SuttonSutton trilogtriloythatgy that ““disabilitydisability”” shouldbeshould be determinedbyreferencetotheeffectsofdetermined by reference to the effects of mitigatingmeasuresmitigating measures PurposesofADAAmendmentsActPurposes of ADA Amendments Act (ADAAA)(ADAAA) •• ToTo restorerestore theADAthe ADA’’sbroadprotectionsass broad protections as intendedbyCongress;andintended by Congress; and •• TorejecttheSupremeCourtTo reject the Supreme Court’’sviewinthes view in the SuttonSutton trilogtriloythatgy that ““disabilitydisability”” shouldbeshould be determinedbyreferencetotheeffectsofdetermined by reference to the effects of mitigatingmeasuresmitigating measures Purposes of ADAAA • To reject the Supreme Court’s holding in Toyota that the ADA requires a “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities • To express Congress’s expectation that EEOC will revise its regulation defining “substantially limits” as “significantly restricted” Slide Notes : previously, EEOC said To be substantially limited, an indi vidual s hould be either unable to perform the major l ife activ ity or significantly rest ricted i n the ability to perform a major life acti vity. Previous g uidance—new r egs not yet appr oved. Consider the natur e and severity of the impairment; the duration or expected duration of the impairment; and the long term impac t of the impairment. Severity An impai rment s ubstanti ally limi ts a maj or life activity if : It prevents the individual from performing a maj or life activity entirely (e.g., the i ndividu al cannot walk due to paraplegi a); or It significa ntly restricts the indivi dual as compar ed to an average person in the g eneral population. Duration If the limiting effects of an impairment are permanent or long-term (and sev ere), the conditi on will rise to the level of an ADA disability. Episodic disorders may be substantially limiting if they are severe when active and are li kely to r ecur in a severe form. For example, major depression may be episodi c for some people. Similarly, certain seizure di sorders may be quiescent for a period and then reoccur in a sev ere form. Long-term Impa ct Impact focus es on whether the impai rment will have any resi dual eff ects on an indiv idual’s l ife. “Substantially Limited”-if discrimination was prior to 1/1/09 • In old regulations, EEOC said to be substantially limited, an individual should be either unable to perform the major life activity or significantly restricted in the ability to perform a major life activity. • Consider the nature and severity of the impairment; the duration or expected duration of the impairment; and the long term impact of the impairment. Slide Notes : Severity An impai rment s ubstanti ally limi ts a maj or life activity if it prev ents the individual from performing a major li fe activi ty entirely (e.g., the indi vidual cannot walk due to paraplegia); or It significa ntly restricts the indivi dual as compar ed to an average person in the g eneral population. Duration If the limiting effects of an impairment are permanent or long-term (and sev ere), the conditi on will rise to the level of an ADA disability. Episodic disorders may be substantially limiting if they are severe when active and are li kely to r ecur in a severe form. Long-term Impa ct Impact focus es on whether the impai rment will have any resi dual eff ects on an indiv idual’s l ife. ADAAA Definition ADAAA Definition ooff ““DDiissaabbiilliittyy”” •• DefinitionofDefinition of ““disabilitydisability”” construedbroadlyconstrued broadly •• Mitigatingmeasures(otherthanordinaryMitigating measures (other than ordinary correctivelenses)shouldnotbeconsideredcorrective lenses) should not be considered •• ImpairmentcanbeadisabilityevenifImpairment can be a disability even if episodicepisodic oror inremissionin remission ADAAADefinitionofADAAA Definition of ““DisabilityDisability”” •• DefinitionofDefinition of ““disabilitydisability”” construedbroadlyconstrued broadly •• Mitigatingmeasures(otherthanordinaryMitigating measures (other than ordinary correctivelenses)shouldnotbeconsideredcorrective lenses) should not be considered •• ImpairmentcanbeadisabilityevenifImpairment can be a disability even if episodicepisodic oror inremissionin remission ““SubSustantiallyLimitsbstantially Limits”” ifdiscriminationif discrimination occurredonorafter1/1/09occurred on or after 1/1/09 •• ADAAmendmentsActdoesnotADA Amendments Act does not affirmativelydefinethetermaffirmatively define the term““substantiallylimits.substantially limits.”” •• WithADAAA,thedisabilityWith ADAAA, the disabilitydeterminationisdetermination is ““anappropriatean appropriate thresholdissuethreshold issue”” butbut ““notanonerousnot an onerous burdenburden”” •• See2008SenateManagersSee 2008 Senate Managers’’ Statementat7Statement at 7 ““SubSustantiallyLimitsbstantially Limits”” ifdiscriminationif discrimination occurredonorafter1/1/09occurred on or after 1/1/09 •• ADAAmendmentsActdoesnotADA Amendments Act does not affirmativelydefinethetermaffirmatively define the term““substantiallylimits.substantially limits.”” •• WithADAAA,thedisabilityWith ADAAA, the disabilitydeterminationisdetermination is ““anappropriatean appropriate thresholdissuethreshold issue”” butbut ““notanonerousnot an onerous burdenburden”” •• See2008SenateManagersSee 2008 Senate Managers’’ Statementat7Statement at 7 Major Life Activities • Include, but are 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. Slide Notes : includes “caring for onesel f, performing manual tasks, seeing, hearing, ea ting, sleeping, walking, standing, lifting, bendi ng, speaking, br eathing, learning, readi ng, concentrating, think ing, communicating, and worki ng.” Section 3(2)(A). EEOC has already recognized most of thes e activiti es. Thr ee of them – reading, bending, and communicating – while not previously recognized by EEOC, will now, by virtue of inclus ion in the statute, be recognized as major life activitie activities. Althou gh some activiti es that the Commission has previously s. r ecognized in the interpretive g uidance accompanying the 1991 re regulation or i n litigati on gulation – su ch as reaching, s itting, i nteracting with others, and elimi na nating waste ting – are not s pecifical ly inclu ded in the ADA Amendments Act, field staff should ass ume that these can also be consi dered major lif e activiti es. EEOC EEOC’s position that these are maj or l ife activities has not been over overruled by the ADA Amendments Act, and the lists in the ADA Amendm ruled Amendments Act are non ents non-exhaustive. communicating dif ferent than speaking otherwise why list twice Major life activities that EEOC has not specifically recogni zed but that are listed in the ADA Amendments Act are reading, bendi bending, and communicating. MMaajjoorr LLiiffee AAccttiivviittiieess •• ThetermThe term ““majorlifeactivitiesmajor life activities”” alsoalso includestheoperationofamajorbodilyincludes the operation of a major bodily function,includingbutnotlimitedto,function, including but not limited to, functionsoftheimmunesystem,normalfunctions of the immune system, normal cellgrowth,digestive,bowel,bladder,cell growth, digestive, bowel, bladder, neurological,brain,respiratory,circulatory,neurological, brain, respiratory, circulatory, endocrine,andreproductivefunctions.endocrine, and reproductive functions. MajMorLifeActivitiesajor Life Activities •• ThetermThe term ““majorlifeactivitiesmajor life activities”” alsoalso includestheoperationofamajorbodilyincludes the operation of a major bodily function,includingbutnotlimitedto,function, including but not limited to, functionsoftheimmunesystem,normalfunctions of the immune system, normal cellgrowth,digestive,bowel,bladder,cell growth, digestive, bowel, bladder, neurological,brain,respiratory,circulatory,neurological, brain, respiratory, circulatory, endocrine,andreproductivefunctions.endocrine, and reproductive functions. MajMrenore iousiotsts Act,butAct, orLifeActivitiesajor Life Activities •• ListsintheADAAmendmentsActanLists in the ADA Amendments Act anon-- exhaustive.exhaustive. •• SomeactivitiesthattheCommissionprevlySome activities that the Commission prevusly recognizedinpriorinterpretiveguidanceorinrecognized in prior interpretive guidance or in litigationlitigation –– suchasreaching,sitting,interactingsuch as reaching, sitting, interacting withothers,andeliminatingwastewith others, and eliminating waste –– arenotare not specificallyincludedintheADAAmendmenspecifically included in the ADA Amendmenfieldstaffshouldassumethatthesecanbut field staff should assume that these can alsobeconsideredmajorlifeactivitiesalso be considered major life activities MajMrenore iousiotsts Act,butAct, orLifeActivitiesajor Life Activities •• ListsintheADAAmendmentsActanLists in the ADA Amendments Act anon-- exhaustive.exhaustive. •• SomeactivitiesthattheCommissionprevlySome activities that the Commission prevusly recognizedinpriorinterpretiveguidanceorinrecognized in prior interpretive guidance or in litigationlitigation –– suchasreaching,sitting,interactingsuch as reaching, sitting, interacting withothers,andeliminatingwastewith others, and eliminating waste –– arenotare not specificallyincludedintheADAAmendmenspecifically included in the ADA Amendmenfieldstaffshouldassumethatthesecanbut field staff should assume that these can alsobeconsideredmajorlifeactivitiesalso be considered major life activities EpEctitywhencivitivisodic/InRemissionpisodic/In Remission •• AnimpairmentthatisAn impairment that is ““episodicorinepisodic or in remissionremission”” isadisabilityifitwouldis a disability if it would substantiallylimitamajorlifeaivsubstantially limit a major life ativity when activeactive (Note:Thephrase(Note: The phr ase ““episodicorinremissionepi sodic or in remi ssion”” appearinboldtext)a ppear i n bold te xt) •• AnindividualwithepilepsywhoisAn individual with epilepsy who is substantiallylimitedinamajorlifeactysubstantially limited in a major life actity suchascaringforself,walking,seeing,such as caring for self, walking, seeing, speaking,orthinkingduringaseizurespeaking, or thinking during a seizure wouldbeanindividualwithadisability.would be an individual with a disability. EpEctitywhencivitivisodic/InRemissionpisodic/In Remission •• AnimpairmentthatisAn impairment that is ““episodicorinepisodic or in remissionremission”” isadisabilityifitwouldis a disability if it would substantiallylimitamajorlifeaivsubstantially limit a major life ativity when activeactive (Note:Thephrase(Note: The phr ase ““episodicorinremissionepi sodic or in remi ssion”” appearinboldtext)a ppear i n bold te xt) •• AnindividualwithepilepsywhoisAn individual with epilepsy who is substantiallylimitedinamajorlifeactysubstantially limited in a major life actity suchascaringforself,walking,seeing,such as caring for self, walking, seeing, speaking,orthinkingduringaseizurespeaking, or thinking during a seizure wouldbeanindividualwithadisability.would be an individual with a disability. Episodic/In Remission • An individual with cancer that is in remission would be an individual with a disability under the first prong of the definition if recurrence of the cancer would substantially limit a major life activity • Other examples include multiple sclerosis, hypertension, diabetes, asthma, major depression, bipolar disorder, and schizophrenia. Slide Notes : Individuals with these impairments can experience flare-ups that may substantially limit major life activities such as sleeping, breathing, caring for oneself , thinki ng, or concentrating. FFiieelldd GGuuiiddaannccee •• TheregulationsontheADAAAmayThe regulations on the ADAAA maycontainfurtherdefinitionofthetermcontain further definition of the term ““substantiallylimits,substantially limits,”” •• Untilthoseregulationsarefinal,Until those regulations are final, EEOCstaffshouldgiveabroadEEOC staff should give a broadinterpretationtothetermasisinterpretation to the term as isintendedbythefindingsandpurposesintended by the findings and purposesoftheActof the Act.. FieldFiGuidanceeld Guidance •• TheregulationsontheADAAAmayThe regulations on the ADAAA maycontainfurtherdefinitionofthetermcontain further definition of the term ““substantiallylimits,substantially limits,”” •• Untilthoseregulationsarefinal,Until those regulations are final, EEOCstaffshouldgiveabroadEEOC staff should give a broadinterpretationtothetermasisinterpretation to the term as isintendedbythefindingsandpurposesintended by the findings and purposesoftheActof the Act.. •• ForexFor ample,inmostcases,itwillbeeasyexample, in most cases, it will be easy toconcludethatimpairmentssuchasto conclude that impairments such as diabetes,epilepsy,paraplegia,blindness,diabetes, epilepsy, paraplegia, blindness, deafness,bipolardisorder,monoculardeafness, bipolar disorder, monocular vision,multiplesclerosis,andParkinsonvision, multiple sclerosis, and Parkinson’’ss disease,amongothers,willsubstantiallydisease, among others, will substantially limitamajorlifeactivity.limit a major life activity. FieldGuidanceField Guidance •• ForexFor ample,inmostcases,itwillbeeasyexample, in most cases, it will be easy toconcludethatimpairmentssuchasto conclude that impairments such as diabetes,epilepsy,paraplegia,blindness,diabetes, epilepsy, paraplegia, blindness, deafness,bipolardisorder,monoculardeafness, bipolar disorder, monocular vision,multiplesclerosis,andParkinsonvision, multiple sclerosis, and Parkinson’’ss disease,amongothers,willsubstantiallydisease, among others, will substantially limitamajorlifeactivity.limit a major life activity. FieldGuidanceField Guidance ““ComparisontomostpeopleComparison to most people”” on/after1/1/09on/after 1/1/09 •• TheADAAmendmentsActlegislativeThe ADA Amendments Act legislative historyusesthetermhistory uses the term ““mostpeopleinmost people in thegeneralpopulationthe general population”” insteadoftheinstead of the EEOCregulatoryphraseEEOC regulatory phrase ““averageaverage personinthegeneralpopulation.person in the general population.”” ““ComparisontomostpeopleComparison to most people”” on/after1/1/09on/after 1/1/09 •• TheADAAmendmentsActlegislativeThe ADA Amendments Act legislative historyusesthetermhistory uses the term ““mostpeopleinmost people in thegeneralpopulationthe general population”” insteadoftheinstead of the EEOCregulatoryphraseEEOC regulatory phrase ““averageaverage personinthegeneralpopulation.person in the general population.”” ““CoeCmparisontomostpeoplomparison to most people”” on/after1/1/09on/after 1/1/09 •• ThelegislativehistoryindicatesthatafactThe legislative history indicates that a fact-- findermayoftenbeabletocompareanfinder may often be able to compare an individualindividual’’slimitationtotheabilityofmosts limitation to the ability of most peopleinthegeneralpopulationusingapeople in the general population using a commoncommon--sensestandardsense standard,without, without resortingtoscientificormedicalevidence.resorting to scientific or medical evidence. (Notethephrase(Note the p hrase ““commonc ommon --sensestandardsense s tandard ”” appearsinboldtext)appear s in bol d text) ““CoeCmparisontomostpeoplomparison to most people”” on/after1/1/09on/after 1/1/09 •• ThelegislativehistoryindicatesthatafactThe legislative history indicates that a fact-- findermayoftenbeabletocompareanfinder may often be able to compare an individualindividual’’slimitationtotheabilityofmosts limitation to the ability of most peopleinthegeneralpopulationusingapeople in the general population using a commoncommon--sensestandardsense standard,without, without resortingtoscientificormedicalevidence.resorting to scientific or medical evidence. (Notethephrase(Note the p hrase ““commonc ommon --sensestandardsense s tandard ”” appearsinboldtext)appear s in bol d text) ““CoeCwithawith thethe gegmparisontomostpeoplomparison to most people”” on/after1/1/09on/after 1/1/09 •• Example,theabilityofanindividualnExample, the ability of an individual an amputatedlimbtoperformamajorlifeactivityamputated limb to perform a major life activity iscomparedtootherpeopleinthegeneralis compared to other people in the general population,nottootheramputees.population, not to other amputees. •• Similarly,aseventySimilarly, a seventy--yearoldemployeewithheartyear old employee with heart diseaseiscomparedtootherpeopleindisease is compared to other people in neralpopulation,notmerelytootherseventyeneral population, not merely to other seventy-- yearoldsortootherpeoplewithheartdisease.year olds or to other people with heart disease. ““CoeCwithawith thethe gegmparisontomostpeoplomparison to most people”” on/after1/1/09on/after 1/1/09 •• Example,theabilityofanindividualnExample, the ability of an individual an amputatedlimbtoperformamajorlifeactivityamputated limb to perform a major life activity iscomparedtootherpeopleinthegeneralis compared to other people in the general population,nottootheramputees.population, not to other amputees. •• Similarly,aseventySimilarly, a seventy--yearoldemployeewithheartyear old employee with heart diseaseiscomparedtootherpeopleindisease is compared to other people in neralpopulation,notmerelytootherseventyeneral population, not merely to other seventy-- yearoldsortootherpeoplewithheartdisease.year olds or to other people with heart disease. ADAAgegprosthtics,prosAADAAA ––DonDon’’tconsiderMitigatingt consider Mitigating MeasuresinDeterminingCoveraMeasures in Determining Coverae Mitigatingmeasuresinclude:Mitigating measures include: (1)(1)medication,medicalsuppliesandequipment,medication, medical supplies and equipment, lowvisionandhearingdevices,elow vision and hearing devices, thetics, mobilitydevices,etc.mobility devices, etc. (2)(2)UseofassistivetechnologyUse of assistive technology (3)(3)ReasonableaccommodationsReasonable accommodations (4)(4)LearnedbehavioraloradaptiveneurologicalLearned behavioral or adaptive neurological modificationsmodifications ADAAgegprosthtics,prosAADAAA ––DonDon’’tconsiderMitigatingt consider Mitigating MeasuresinDeterminingCoveraMeasures in Determining Coverae Mitigatingmeasuresinclude:Mitigating measures include: (1)(1)medication,medicalsuppliesandequipment,medication, medical supplies and equipment, lowvisionandhearingdevices,elow vision and hearing devices, thetics, mobilitydevices,etc.mobility devices, etc. (2)(2)UseofassistivetechnologyUse of assistive technology (3)(3)ReasonableaccommodationsReasonable accommodations (4)(4)LearnedbehavioraloradaptiveneurologicalLearned behavioral or adaptive neurological modificationsmodifications OnOeExceptionne Exception--ConsiderOrdinaryEyeglassesConsider Ordinary Eyeglasses orContactLensesor Contact Lenses •• Definition:Definition: ““lensesthatareintendedtolenses that are intended to fullycorrectvisualacuityoreliminatefully correct visual acuity or eliminate refractiveerrorrefractive error”” •• DistinguishedfromDistinguished from ““lowvisiondevices,low vision devices,”” definedasdefined as ““devicesthatmagnify,enhance,devices that magnify, enhance, orotherwiseaugmentavisualimageor otherwise augment a visual image”” OnOeExceptionne Exception--ConsiderOrdinaryEyeglassesConsider Ordinary Eyeglasses orContactLensesor Contact Lenses •• Definition:Definition: ““lensesthatareintendedtolenses that are intended to fullycorrectvisualacuityoreliminatefully correct visual acuity or eliminate refractiveerrorrefractive error”” •• DistinguishedfromDistinguished from ““lowvisiondevices,low vision devices,”” definedasdefined as ““devicesthatmagnify,enhance,devices that magnify, enhance, orotherwiseaugmentavisualimageor otherwise augment a visual image”” ““RegardeRegaanctionalorl mainglejobbecauseofanacm sirsdAsrded As”” DisabledDisabled •• BroaderdefinitionofBroader definition of ““regardedasregarded as”” disabledthatdisabled that wouldcoveranyonesubjectedtoawould cover anyone subjected to n action ““prohibitedbythisActprohibited by this Act”” (example,nothiredor(example, not hired or fired)becauseofarealorperceivedphysicafired) because of a real or perceived physicaor mentalimpairmentmental impairment •• ““RegardedasRegarded as”” wouldexcludeimpairmentsthatwould exclude impairments that aretransitory(lessthansixmonths)andminorare transitory (less than six months) and minor •• IndividualsIndividuals ““regardedasregarded as”” disablednotentitleddisabled not entitled toreasonableaccommodationto reasonable accommodation SlideNotes:Slide Notes : Thus,anindividualexcludedfrosThus, an i ndividua l exclud ed f ro a sing l e job be cause of an actualorperceivedphysicalormentalimpairmentwillbecondetu al or pe rceived physical or ment al impai rment will be c onider edtomeetthee d to me et the ‘‘regardedasre garded as”” definitionofdisability.defi nition o f disabil ity. ““RegardeRegaanctionalorl mainglejobbecauseofanacm sirsdAsrded As”” DisabledDisabled •• BroaderdefinitionofBroader definition of ““regardedasregarded as”” disabledthatdisabled that wouldcoveranyonesubjectedtoawould cover anyone subjected to n action ““prohibitedbythisActprohibited by this Act”” (example,nothiredor(example, not hired or fired)becauseofarealorperceivedphysicafired) because of a real or perceived physicaor mentalimpairmentmental impairment •• ““RegardedasRegarded as”” wouldexcludeimpairmentsthatwould exclude impairments that aretransitory(lessthansixmonths)andminorare transitory (less than six months) and minor •• IndividualsIndividuals ““regardedasregarded as”” disablednotentitleddisabled not entitled toreasonableaccommodationto reasonable accommodation SlideNotes:Slide Notes : Thus,anindividualexcludedfrosThus, an i ndividua l exclud ed f ro a sing l e job be cause of an actualorperceivedphysicalormentalimpairmentwillbecondetu al or pe rceived physical or ment al impai rment will be c onider edtomeetthee d to me et the ‘‘regardedasre garded as”” definitionofdisability.defi nition o f disabil ity. ADAADtofhet orsors andanAAFieldGuidanceAAA Field Guidance •• ThemostimportantpracticaleffectThe most important practical effecof the ADAAmendmentsforEEOCinvestigatADA Amendments for EEOC investigatattorneysisthattheyshouldexpecttod attorneys is that they should expect to bespendingmoretimeandeffortevaluatingbe spending more time and effort evaluating themeritsofdisabilitydiscriminationandthe merits of disability discrimination and reasonableaccommodationclaims,andlessreasonable accommodation claims, and less ondeterminingwhetheranindividualmeetson determining whether an individual meets thedefinitionofdisability.the definition of disability. ADAADtofhet orsors andanAAFieldGuidanceAAA Field Guidance •• ThemostimportantpracticaleffectThe most important practical effecof the ADAAmendmentsforEEOCinvestigatADA Amendments for EEOC investigatattorneysisthattheyshouldexpecttod attorneys is that they should expect to bespendingmoretimeandeffortevaluatingbe spending more time and effort evaluating themeritsofdisabilitydiscriminationandthe merits of disability discrimination and reasonableaccommodationclaims,andlessreasonable accommodation claims, and less ondeterminingwhetheranindividualmeetson determining whether an individual meets thedefinitionofdisability.the definition of disability. General R ule –General rule: An employer must provide a reasonable accommodation to an individual with a disability if requested and if doing so does not pose an undue hardship. (Note: “General Rule” a nd “Undue Hardship” are in red text to indicate importa nce.) Image on this page shows an individual in a wheelchair using a laptop computer. Slide Note s: To focus the inqui ry in ADA cases on whether dis crimination occurred, r ather than on coverage, the lang uage of the general prohibition of discr iminati on (§ 10 2(a) of the ADA) has been amended by r eplacing the words “dis criminate against a qual ified individual with a disability because of the disability of such indivi dual” with the words “ discrimi nate against an i ndividu al on the basis of disabi lity.” 2 008 SenateManagers’ Statement at 11. Reasonable accommodation –A reasonable accommodation is a change in the workplace, or in the way things are usually done, that provides equal employment opportunities for individuals with disabilities. Image on this page shows an individual in a wheelchair using a laptop computer. Slide Note s: To focus the inqui ry in ADA cases on whether dis crimination occurred, r ather than on coverage, the lang uage of the general prohibition of discr iminati on (§ 10 2(a) of the ADA) has been amended by r eplacing the words “dis criminate against a qual ified individual with a disability because of the disability of such indivi dual” with the words “ discrimi nate against an i ndividu al on the basis of disabi lity.” 2 008 SenateManagers’ Statement at 11. This slide defines reasonable accommodation. Undue Undsesumncesofullsl,, substasubhardship:ue hardship: –– SignificantSignificant difficultyorexpendifficulty or expene (Note:(Not e: ““SignificantSi gnifica nt ”” isinredtext)is in red t e xt ) –– FocusonresourcesandcircstaFocus on resources and circmstances of employeremployer –– ConsiderfinancialdifficultyasweaConsider financial difficulty as wel as reasonableaccommodationsthatareextensivereasonable accommodations that are extensivential,ordisruptivestantial, or disruptive –– considerimpactonoperationsconsider impact on operations UndueUndsesumncesofullsl,, substasubhardship:ue hardship: –– SignificantSignificant difficultyorexpendifficulty or expene (Note:(Not e: ““SignificantSi gnifica nt ”” isinredtext)is in red t e xt ) –– FocusonresourcesandcircstaFocus on resources and circmstances of employeremployer –– ConsiderfinancialdifficultyasweaConsider financial difficulty as wel as reasonableaccommodationsthatareextensivereasonable accommodations that are extensivential,ordisruptivestantial, or disruptive –– considerimpactonoperationsconsider impact on operations GINGtt (GINA(GIttot AINA •• GeneticInformationNonDiscriminationAcGenetic Information Non Discrimination Ac)NA) •• TitleIIoftheActcoversallentitiessubjecTitle II of the Act covers all entities subjecto TitleVIIoftheCivilRightsActof1964,Title VII of the Civil Rights Act of 1964, includingthefederalgovernment.including the federal government. •• TitleIIbecomeseffectiveonNovember21,Title II becomes effective on November 21, 2009.2009. •• EEOCEEOC’’ss proposedregulationshavebeenproposed regulations have been publishedpublished GINGtt (GINA(GIttot AINA •• GeneticInformationNonDiscriminationAcGenetic Information Non Discrimination Ac)NA) •• TitleIIoftheActcoversallentitiessubjecTitle II of the Act covers all entities subjecto TitleVIIoftheCivilRightsActof1964,Title VII of the Civil Rights Act of 1964, includingthefederalgovernment.including the federal government. •• TitleIIbecomeseffectiveonNovember21,Title II becomes effective on November 21, 2009.2009. •• EEOCEEOC’’ss proposedregulationshavebeenproposed regulations have been publishedpublished GINGingeneticinAINA •• ProhibitscoveredentitiesfromusgProhibits covered entities from usg genetic informationaboutanindividualwhenmakinginformation about an individual when making employmentdecisions.employment decisions. (noexceptions)(no exceptions) •• ProhibitstheacquisitionanddisclosureofProhibits the acquisition and disclosure of geneticinformation,withlimitedexceptionsgenetic information, with limited exceptions •• IncludesanantiIncludes an anti--retaliationprovision.retaliation provision. GINGingeneticinAINA •• ProhibitscoveredentitiesfromusgProhibits covered entities from usg genetic informationaboutanindividualwhenmakinginformation about an individual when making employmentdecisions.employment decisions. (noexceptions)(no exceptions) •• ProhibitstheacquisitionanddisclosureofProhibits the acquisition and disclosure of geneticinformation,withlimitedexceptionsgenetic information, with limited exceptions •• IncludesanantiIncludes an anti--retaliationprovision.retaliation provision. ““GeGindvidualilyedicallneticInformationenetic Information”” •• IncludesinformationaboutaniIncludes information about an ndividual’’sgenetictests,s genetic tests, genetictestsofafamilymember,andfamimgenetic tests of a family member, and famiy medical history.history. •• GeneticinformationdoesnotincludeinformationGenetic information does not include information aboutthesexorageofanindividualortheindividualabout the sex or age of an individual or the individual’’ss familymembers,orinformationthatanindividualfamily members, or information that an individual currentlyhascurrently has adiseaseordisorder.a disease or disorder. •• GeneticinformationalsodoesnotincludetestsforGenetic information also does not include tests for alcoholordruguse.alcohol or drug use. ““GeGindvidualilyedicallneticInformationenetic Information”” •• IncludesinformationaboutaniIncludes information about an ndividual’’sgenetictests,s genetic tests, genetictestsofafamilymember,andfamimgenetic tests of a family member, and famiy medical history.history. •• GeneticinformationdoesnotincludeinformationGenetic information does not include information aboutthesexorageofanindividualortheindividualabout the sex or age of an individual or the individual’’ss familymembers,orinformationthatanindividualfamily members, or information that an individual currentlyhascurrently has adiseaseordisorder.a disease or disorder. •• GeneticinformationalsodoesnotincludetestsforGenetic information also does not include tests for alcoholordruguse.alcohol or drug use. GINGformatiofoisinng,is AINA--ConfidentialityConfidentiality •• EmployersmustkeeptheinnEmployers must keep the inrmation confidentialand,iftheinformationwriticonfidential and, if the information in writing, mustkeepitapartfromotherpersonnelmust keep it apart from other personnel informationinseparatemedicalfiles.information in separate medical files. •• AnemployermaykeepgeneticinformationinAn employer may keep genetic information in thesamefileasmedicalinformationsubjecttothe same file as medical information subject to theADA.the ADA. GINGformatiofoisinng,is AINA--ConfidentialityConfidentiality •• EmployersmustkeeptheinnEmployers must keep the inrmation confidentialand,iftheinformationwriticonfidential and, if the information in writing, mustkeepitapartfromotherpersonnelmust keep it apart from other personnel informationinseparatemedicalfiles.information in separate medical files. •• AnemployermaykeepgeneticinformationinAn employer may keep genetic information in thesamefileasmedicalinformationsubjecttothe same file as medical information subject to theADA.the ADA. ExceExsthes sitiofsirespontornnanaptionception----AcquisitionofGeneticAcquisition of Genetic InformationInformation •• Oneexception,sometimesreferredtoaOne exception, sometimes referred to athe ““waterwater coolercooler”” exception,appliestoinadvertentacquionexception, applies to inadvertent acquition ofgeneticinformation.genetic information. •• ExampleExample----asupervisoroverhearsaconversationa supervisor overhears a conversationbetweencobetween co--workersinwhichgeneticinformationisworkers in which genetic information isdiscussedorreceivesgeneticinformationinsediscussed or receives genetic information in esponse toaquestionaboutthegeneralhealthofanemployeeora question about the general health of an employee oremployeesfamilymember,orwhereanemployeremployees family member, or where an employerreceivesgeneticinformationaspartofdocumentatioreceives genetic information as part of documentatioemployeesubmitsinsupportofarequestforn employee submits in support of a request forreasonableaccommodationundertheAmericanswithreasonable accommodation under the Americans with DisabilitiesAct(ADA)orothersimilarlaw.Disabilities Act (ADA) or other similar law. ExceExsthes sitiofsirespontornnanaptionception----AcquisitionofGeneticAcquisition of Genetic InformationInformation •• Oneexception,sometimesreferredtoaOne exception, sometimes referred to athe ““waterwater coolercooler”” exception,appliestoinadvertentacquionexception, applies to inadvertent acquition ofgeneticinformation.genetic information. •• ExampleExample----asupervisoroverhearsaconversationa supervisor overhears a conversationbetweencobetween co--workersinwhichgeneticinformationisworkers in which genetic information isdiscussedorreceivesgeneticinformationinsediscussed or receives genetic information in esponse toaquestionaboutthegeneralhealthofanemployeeora question about the general health of an employee oremployeesfamilymember,orwhereanemployeremployees family member, or where an employerreceivesgeneticinformationaspartofdocumentatioreceives genetic information as part of documentatioemployeesubmitsinsupportofarequestforn employee submits in support of a request forreasonableaccommodationundertheAmericanswithreasonable accommodation under the Americans with DisabilitiesAct(ADA)orothersimilarlaw.Disabilities Act (ADA) or other similar law. ADA-Disability Related Questions and Medical Exams • General Principles: – Pre-offer – no questions or exam – Post-offer – all questions/exams are OK as long as required of all applicants in same job category – During employment –must be job-related and consistent with business necessity – To process reasonable accommodation request – if disability and/or need for accommodation not obvious or already known. (Note: The following from the informa tion above are shown in red t ext: “Pre-offer ”, “Post-offer ”, “During Employme nt” and “To process reasona ble acc ommodation r equest ”.) Slide Note s: The ADA s pecifies when an employer may require an appli cant or employee to undergo a medical examination or when it may make disabi lity-related inqu iries. A medical exami nation is a procedure or test that seeks i nformati on about an individual’ s physical or mental impairments or health. A disability-related inquiry is a question that is li kely to el icit information about a disabili ty. Under the ADA, both disabi lity-related inqu iries and medical exami nations are: Prohibited pre-off er. 42 U.S.C. §1 2112 (d)(2); Allowed post-offer if all entering employees in the same job category get the same question or test. Id. at §12112(d)(3); and Regulated during employment. Id. at §121 12(d)(4). The types of tests covered r un the gamut fr om cog nitive tests, t to assess reasoning, memor y, perceptual speed and accuracy, skill o skills i n arithmetic and reading compr ehension; physi cal ability test s tests, used to measure the physical abi lity to perform a particu lar s, task or the s trength of speci fic mus cle grou ps, as well as str en ength and stamina in general; sample j ob task s (e.g., performance gth tests, simul ations, work samples, and realis tic job previews ) ar are ass igned to assess performance and aptitu de; medi cal inqu iries e and physical exami nations, includi ng psychological tests, are g given to appl icants and empl oyees to ensure that ther e are no phy iven physical or mental impairments that would af fect job performance or sical safety; Other tests include personality tests , used to measu re the degre degree to which a person has traits or dis positions that ar e relevant e to job performance or other j ob ob-related concerns (e. g., safety, dependability, cooperativeness ); and i ntegrity tests used to predict thef t and absenteeism, as w well as ov erall job performance and reliability. ell The employer is permitted to tell applicants what the hiring pro process involv es ( cess e.g. g., an inter view, a timed wr itten tes t), and then , ma y ask al l applic ants if they will need a reasonable accommodati on for t he hiring proc ess only . Such questions often appear on job applicati on forms and ar e permi ssible. A person with a dis ability will not know if s/he m might need a r easonable accommodati on without first knowing what ight the appli cation process entails. number of procedures and tests employ ersma y require that genera general ly are not considered medic al examinations l examinations, inclu ding: , tests to determine the curre nt illegal use of drugs drugs; (32) ; physical a gility te sts sts, whi ch meas ure an employee's ability to perf orm actual or simul , simulated job tas ks, and ated physical fitness tests tests, which measure an employee's performance of physical tasks, suc , such as ru nning or lifting, as long as these tests do not include e h ex aminations that could be considered medical ( x e. g. g., meas uring heart rate or blood press ure); , tests that ev aluate an employee's abil ity to read label s or dist distinguish objects as part of a demonstrati on of the ability to per inguish perf orm actual job f unctions; f psychological test s that measure personal ity traits such as honesty, prefer ences, a and habits; and, nd polygraph examinations GINA GIngaoboffer.ng uctenetictestsucbodtext.)b/ADAandpostNA/ADA and post--offermedicaloffer medical inquiriesinquiries •• GINAlimitsanemployerGINA limits an employer’’sabilitytoobtaingenetics ability to obtain genetic informationaftermakijinformation after makia job offer. •• AlthoughtheADAAlthough the ADA currentlycurrently permitsacoveredentitypermits a covered entity toobtainfamilymedicalhistoryorcondgto obtain family medical history or condt genetic tests ofjobapplicantsonceanofferofemploymenthasbeenof job applicants once an offer of employment has been made,providedthisisdoneforallenteringemployeesmade, provided this is done for all entering employees inthesamejobcategoryin the same job category •• ThatwillbeThat will be prohibitedprohibited upontheeffectivedateofupon the effective date of GINA.GINA. (Note:Thewords(Note: The words ““ CurrentlyCurrent ly”” andand ““ProhibitedProhi bited”” fromtheinformationaboveareinlf rom the inform ation ab ove are i n old t ext.) GINAGIngaoboffer.ng uctenetictestsucbodtext.)b/ADAandpostNA/ADA and post--offermedicaloffer medical inquiriesinquiries •• GINAlimitsanemployerGINA limits an employer’’sabilitytoobtaingenetics ability to obtain genetic informationaftermakijinformation after makia job offer. •• AlthoughtheADAAlthough the ADA currentlycurrently permitsacoveredentitypermits a covered entity toobtainfamilymedicalhistoryorcondgto obtain family medical history or condt genetic tests ofjobapplicantsonceanofferofemploymenthasbeenof job applicants once an offer of employment has been made,providedthisisdoneforallenteringemployeesmade, provided this is done for all entering employees inthesamejobcategoryin the same job category •• ThatwillbeThat will be prohibitedprohibited upontheeffectivedateofupon the effective date of GINA.GINA. (Note:Thewords(Note: The words ““ CurrentlyCurrent ly”” andand ““ProhibitedProhi bited”” fromtheinformationaboveareinlf rom the inform ation ab ove are i n old t ext.) OthOIN,buttheActdirectsIimiofof harhaerprovisionsther provisions •• NodisparateimpactunderGANo disparate impact under GNA, but the Act directs thatacommissionbeestablishedaftersixyearstothat a commission be established after six years to reportonpossibilityofallowingdisparateimpactclasreport on possibility of allowing disparate impact clams •• TitleIIofGINAdoesnotdirectlyaddresstheissueTitle II of GINA does not directly address the issue assmentclaims.But,indescribingtheprohibitedrassment claims. But, in describing the prohibited employmentpractices,Congressadoptedlanguageemployment practices, Congress adopted language similartothatusedinTitleVIIandotherequalsimilar to that used in Title VII and other equal employmentopportunitystatutes,evincingitsintenttoemployment opportunity statutes, evincing its intent to prohibitdiscriminationwithrespecttoawiderangeofprohibit discrimination with respect to a wide range of practices,includingharassmentpractices, including harassment OthOIN,buttheActdirectsIimiofof harhaerprovisionsther provisions •• NodisparateimpactunderGANo disparate impact under GNA, but the Act directs thatacommissionbeestablishedaftersixyearstothat a commission be established after six years to reportonpossibilityofallowingdisparateimpactclasreport on possibility of allowing disparate impact clams •• TitleIIofGINAdoesnotdirectlyaddresstheissueTitle II of GINA does not directly address the issue assmentclaims.But,indescribingtheprohibitedrassment claims. But, in describing the prohibited employmentpractices,Congressadoptedlanguageemployment practices, Congress adopted language similartothatusedinTitleVIIandotherequalsimilar to that used in Title VII and other equal employmentopportunitystatutes,evincingitsintenttoemployment opportunity statutes, evincing its intent to prohibitdiscriminationwithrespecttoawiderangeofprohibit discrimination with respect to a wide range of practices,includingharassmentpractices, including harassment RemedRemeIIIvevneysneys’’ feefeIe l,liesunderGINAdies under GINA •• SameremediesasTitleVSame remedies as Title VI •• Reinstatement,hiring,promotion,backpay,injunctiReinstatement, hiring, promotion, back pay, injunctie relief,pecuniaryandnonrelief, pecuniary and non--pecuniarydamages(includingpecuniary damages (including compensatoryandpunitivedamages)andattorcompensatory and punitive damages) and attorsandcosts.ees and costs. •• TitleTitle VIIVII’’ss caponcombinedcompensatoryandcap on combined compensatory and punitivedamagesalsoappliestoactionsunderTitlIpunitive damages also applies to actions under TitlII ofGINA.of GINA. •• PunitivedamagesarenotavailableagainstfederaPunitive damages are not available against federa, state,orlocalgovernmentemployers.state, or local government employers. RemedRemeIIIvevneysneys’’ feefeIe l,liesunderGINAdies under GINA •• SameremediesasTitleVSame remedies as Title VI •• Reinstatement,hiring,promotion,backpay,injunctiReinstatement, hiring, promotion, back pay, injunctie relief,pecuniaryandnonrelief, pecuniary and non--pecuniarydamages(includingpecuniary damages (including compensatoryandpunitivedamages)andattorcompensatory and punitive damages) and attorsandcosts.ees and costs. •• TitleTitle VIIVII’’ss caponcombinedcompensatoryandcap on combined compensatory and punitivedamagesalsoappliestoactionsunderTitlIpunitive damages also applies to actions under TitlII ofGINA.of GINA. •• PunitivedamagesarenotavailableagainstfederaPunitive damages are not available against federa, state,orlocalgovernmentemployers.state, or local government employers. ConsiderifcoveredunderADApriorConsider if covered under ADA prior GINAeffectivedateGINA effective date •• Remember,forallegeddiscriminationongeneticRemember, for alleged discrimination on genetic informationpriorto11/21/2009,conductmayinformation prior to 11/21/2009, conduct may beprohibitedbyADAbe prohibited by ADA •• Example,carpaltunnelconductivitytestsExample, carpal tunnel conductivity tests ConsiderifcoveredunderADApriorConsider if covered under ADA prior GINAeffectivedateGINA effective date •• Remember,forallegeddiscriminationongeneticRemember, for alleged discrimination on genetic informationpriorto11/21/2009,conductmayinformation prior to 11/21/2009, conduct may beprohibitedbyADAbe prohibited by ADA •• Example,carpaltunnelconductivitytestsExample, carpal tunnel conductivity tests LILLY LEDBETTER FAIR PAY ACT Law Reinstates EEOC Position on Timeliness of Filing Wage Bias Charges Ledbetter v Goodyear Tir e & Rubber (2006): In paydiscrimination cases the federal statute of limitations begins to run when the paysetting decision ismade. LillyLedbetter Fair Pay Act (2009): Unlawful employment practice occurs each time wages, benefits, or other compensation is paid. Image of LillyLedbetter and President Obama. Slide Not es: The bill, signed into law on Januar y29, 2009, by Presi dent Obama, extends the time frame for employees to file paydi scrimination cases based on the most recent allegedl ydiscriminator ypaycheck or other pay- related action, such as a deci sion setting a raise amount. The measure (S.181) was passed by the Senate on Januar y22 and approved by the House of Representati ves on Januar y 27. The Ledbetter Fai r Pay Act states that the Supreme Court’s 2007 decision i s “contrar yto the intent of Congress” because it “significantl yimpairs statutor y protections against di scrimi nation i n compensati on that Congress established and that have been bedrock principl es of American lawfor decades.” The Act states that with respect to pay discrimination, an unlawful employment practice occurs “each time wages, benefits, or other compensation is pai d, result ing in whole or in part fr om [a pay] decisi on or other practice.” Ledbetter v Goodyear Tire & Rubber (2006) In pay discrimination cases the federal statute of limitations begins to run when the pay setting decision is made. Lilly Ledbetter Fair Pay Act 2009 Unlawful employment practice occurs each time wages, benefits, or other compensation is paid EEOC From wwwwww..eeeeoocc..ggoovv The U.S. Equal Employment Opportunity Commission PANDEMIC PREPAREDNESS IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT the Americans with Disabilities Act (ADA) and pandemic planning in the workplace. It identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning such as: How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when aninfluenza pandemic appears imminent? When may an ADA-covered employer take the body temperature ofemployees during a pandemic? Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus? LillLilctstoresthepaycheckcyLedbetterFairPayActly Ledbetter Fair Pay Act •• LilyLedbetterFairPayareLily Ledbetter Fair Pay at restores the paycheck accrualruleaccrual rule •• ChargeallegingpaydisparitybasedonprotectedCharge alleging pay disparity based on protected characteristicistimelyiffiledwithin180/300characteristic is timely if filed within 180/300 days(300daysinourdistrict)ofpaydecision,days (300 days in our district) of pay decision, whensubjectedtothepaydecisionORwhen subjected to the pay decision OR discriminatorypaycheckdiscriminatory pay check •• RetroactiveeffectivedateofMay28,2007Retroactive effective date of May 28, 2007 LillLilctstoresthepaycheckcyLedbetterFairPayActly Ledbetter Fair Pay Act •• LilyLedbetterFairPayareLily Ledbetter Fair Pay at restores the paycheck accrualruleaccrual rule •• ChargeallegingpaydisparitybasedonprotectedCharge alleging pay disparity based on protected characteristicistimelyiffiledwithin180/300characteristic is timely if filed within 180/300 days(300daysinourdistrict)ofpaydecision,days (300 days in our district) of pay decision, whensubjectedtothepaydecisionORwhen subjected to the pay decision OR discriminatorypaycheckdiscriminatory pay check •• RetroactiveeffectivedateofMay28,2007Retroactive effective date of May 28, 2007 LiirPayActLI,IllyLedbetterFailly Ledb et t er F air Pay Act •• LillyLedbetterFairPayActamendsTitleVILilly Ledbetter Fair Pay Act amends Title VI, theADA,theADEA,andtheRehabilitationthe ADA, the ADEA, and the Rehabilitation ActsoitappliesifcompensationdiscriminationAct so it applies if compensation discrimination wasbasedonotherprotectedcharacteristicswas based on other protected characteristics underthosestatutes,suchasrace,nationalunder those statutes, such as race, national origin,age,disabilityetc.origin, age, disability etc. LiirPayActLI,IllyLedbetterFailly Ledb et t er F air Pay Act •• LillyLedbetterFairPayActamendsTitleVILilly Ledbetter Fair Pay Act amends Title VI, theADA,theADEA,andtheRehabilitationthe ADA, the ADEA, and the Rehabilitation ActsoitappliesifcompensationdiscriminationAct so it applies if compensation discrimination wasbasedonotherprotectedcharacteristicswas based on other protected characteristics underthosestatutes,suchasrace,nationalunder those statutes, such as race, national origin,age,disabilityetc.origin, age, disability etc. Public Policy Factors • Social Security Benefits •Work Incentives • Health Care Coverage • Nondiscrimination Legislation •Workforce Development Initiatives Individual Factors • Nature of disability/impairment • Prior work experience • Prior training • Family/social supports Systems / Organizational Factors • Efficacy/philosophy of state VR service delivery systems • Efficacy/philosophy of community-based support services • Employer policies and practices Factors Impacting Successful Employment Outcomes for People with Disabilities* *Illustrative, not exhaustive, list Factors Impacting Successful Employment Outcomes for People wi th Disabilities.* Illustr ati ve, not exhausti ve l ist. Oval chart, indicating three areas of factors, Public Policy, Systems/Organizational and Indi vidual Factors. Based on the color coding of the ovals, Public PolicyFactors overlaps into Systems andOrganizational Factors - followed byIndi vidual Factors. Factors listed as follows: Public Poli cyFactors: Social SecurityBenefits Wor kIncenti ves Health Care Coverage Nondiscrimination Legislation Wor kforce Devel opment Initiati ves Systems / Organizational Factors: Efficacy/philosophyof state VR ser vice deli ver y systems Efficacy/philosophyof communi ty-based support ser vices Employer policies and pr actices Indi vidual Factors: Nature of disability/impai rment Prior wor k experi ence Prior traini ng Famil y/social supports MYTH OR FACT? MYTH OR FACT? ThereisahigherpercentageofThere is a higher percentage of peoplewithdisabilitiesemployedpeople with disabilities employed thanthosepeoplewithoutathan those people without a disabilitydisability MYTHORFACT?MYTH OR FACT? ThereisahigherpercentageofThere is a higher percentage of peoplewithdisabilitiesemployedpeople with disabilities employed thanthosepeoplewithoutathan those people without a disabilitydisability MYTH 78% of people without disabilities reported being employed full or part time, whereas that figure for people with disabilities is only 35% Imag e of a g roup of men in unifo r m, on e of the m is sti c king his tong ue out at the ca mera) MYTH 78% of people without disabilities reported being employed full or part time, whereas that figure for people with disabilities is only 35% Imag e of a g roup of men in unifo r m, on e of the m is sti c king his tong ue out at the ca mera) barriers barriers • Myths are roadblocks that interfere with the ability of individuals with disabilities to have equality in employment. • Roadblocks result from lack of experience or interaction with persons with disabilities • Lack of familiarity nourishes negative attitudes concerning employment of persons with disabilities. AccoAly%hadtollitis.lmmodationsInformationccommodations Information ..a2003Nationalsurveyfoundthaton24a 2003 National survey found that ony 24% had to makeaccommodationsforemployeeswithdisabiemake accommodations for employees with disabiities. •• astudyofemployersmakingaccommodationsfounda study of employers making accommodations found halfofallaccommodationshadnocosthalf of all accommodations had no cost •• thosethatdidhadamediancostof$600.those that did had a median cost of $600. •• oneone--thirdofemployersallowtelecommuting.third of employers allow telecommuting. AccoAly%hadtollitis.lmmodationsInformationccommodations Information ..a2003Nationalsurveyfoundthaton24a 2003 National survey found that ony 24% had to makeaccommodationsforemployeeswithdisabiemake accommodations for employees with disabiities. •• astudyofemployersmakingaccommodationsfounda study of employers making accommodations found halfofallaccommodationshadnocosthalf of all accommodations had no cost •• thosethatdidhadamediancostof$600.those that did had a median cost of $600. •• oneone--thirdofemployersallowtelecommuting.third of employers allow telecommuting. WhtWiblforiboseresponsibilityisihose responsibility is it •• ItistheemployeeIt is the employee’’sresponsibilitytorequests responsibility to request anaccommodationan accommodation •• However,theemployerisresponseHowever, the employer is responsle for notifyingapplicantsandemployeesofitsnotifying applicants and employees of its obligationtoprovideaccommodationsobligation to provide accommodations WhtWiblforiboseresponsibilityisihose responsibility is it •• ItistheemployeeIt is the employee’’sresponsibilitytorequests responsibility to request anaccommodationan accommodation •• However,theemployerisresponseHowever, the employer is responsle for notifyingapplicantsandemployeesofitsnotifying applicants and employees of its obligationtoprovideaccommodationsobligation to provide accommodations HowifHomodion,m.. •• ThTdoesanemployerdeterminew does an employer determine if anindividualiscovered?an individual is covered? •• OnceanemployeeasksforanaccomatOnce an employee asks for an accomodation, anemployermayrequestdocumentationan employer may request documentationeinformationmustbekeptconfidential.he information must be kept confidential. •• TheinformationmustnotbemoreintrusiveorThe information must not be more intrusive or extensivethanisjobextensive than is job--relatedorconsistentwithrelated or consistent with businessnecessity.business necessity. HowifHomodion,m.. •• ThTdoesanemployerdeterminew does an employer determine if anindividualiscovered?an individual is covered? •• OnceanemployeeasksforanaccomatOnce an employee asks for an accomodation, anemployermayrequestdocumentationan employer may request documentationeinformationmustbekeptconfidential.he information must be kept confidential. •• TheinformationmustnotbemoreintrusiveorThe information must not be more intrusive or extensivethanisjobextensive than is job--relatedorconsistentwithrelated or consistent with businessnecessity.business necessity. HowisHow yeandyR.A.nRtherightaccommodationdetermined?is the right accommodation determined? Informal,Informal, interactiveinteractive processbetweenemplorprocess between emploer and employee.employee. •• AgoodresourceisA good resource is TheJobAccommodationNetworkThe Job Accommodation Network 180052672341 800 526 7234 •• EmployermakesfinaldeterminationforthebestiEmployer makes final determination for the best .A. in compliancewiththeADA.compliance with the ADA. •• NotrequiredifitwouldimposeanNot required if it would impose an unduehardshipundue hardship HowisHow yeandyR.A.nRtherightaccommodationdetermined?is the right accommodation determined? Informal,Informal, interactiveinteractive processbetweenemplorprocess between emploer and employee.employee. •• AgoodresourceisA good resource is TheJobAccommodationNetworkThe Job Accommodation Network 180052672341 800 526 7234 •• EmployermakesfinaldeterminationforthebestiEmployer makes final determination for the best .A. in compliancewiththeADA.compliance with the ADA. •• NotrequiredifitwouldimposeanNot required if it would impose an unduehardshipundue hardship The page shows the DB TACs l ogos and stat e coverage by region. Information is dis played on a map of t he Unit ed States in t he center of the page showing DB TACs area of cover age by Region and st ates. Surrounding the map are the logos for each regi on. DBTAC Regions shown are as follows: Region 1: New England DBTAC States Covered: Conne cticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Region 2: Northeast DBTAC States Covered: New Jerse y, New York, Puerto Rico, Virgin Islands Region 3: Mid-Atlantic DBTAC States Covered: Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia Region 4: Southeast DBTAC States Covered: Alabama, Florida , Georgia, K entucky, Mississippi, North Carolina, South Carolina, Tennessee Region 5: Grea t Lake s DBTAC States Covered: Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin Region 6: Southwest DBTAC States Covered: Arkansas, Louisiana, New Mexico, Oklahoma, Texas Region 7: Grea t Plains DBTAC States Covered: Iowa, Kansas, Missouri, Nebraska Region 8: Rocky Mountain DBTAC States Covered: Colorado, Montana, North Dakota, South Dakota, Utah, Wy oming Region 9: Pacif ic DBTAC States Covered: Arizona, California, Hawaii, Nevada , Pacif ic Basin Region 10: Northwest DBTAC States Covered: Alaska, Idaho, Oregon, Washington Disability and Business Techni cal As sistanc e Cent ers DB TACs 1 800 949 4ADA (4232) Disability and Business Technical Assistance Centers DBTACs 1 800 949 4ADA 1-800-949-4232 90% of education is knowing where to fi nd the i nformation when you need it. Logo: EEOC Trai ning Institute, Learn fr omthe experts Joe Bontke 713-209-3436 offi ce 713-907-2855 cell Joe.bontke@eeoc.govemail Image of three persons ( one is i n a wheelchair ) steppi ng off of a pair of hands onto solid ground. 90% of education is knowing where to find the information when you need it. Joe Bontke 713 209 3436 office 713 907 2855 cell joe.bontke@eeoc.gov email