2009 was a watershed year for disability discrimination. The EEOC received a record number of disability-related charges – 21,451. Indeed, 23% of all charges filed with the EEOC contained an allegation of disability discrimination – and this number is poised to skyrocket in 2010.
What’s the reason for the spike in discrimination claims? The Americans With Disabilities Amendments Act.
With the EEOC in charge of suing to force compliance, you need to know the answers to these eight questions.
1. How does the ADAAA define “disability”?
The ADAAA defines a disability as:
- a physical or mental impairment that substantially limits a major life activity; or
- a record of a physical or mental impairment that substantially limited a major life activity; or
- when an entity (e.g., an employer) takes an action prohibited by the ADA based on an actual or perceived impairment.
In the questions below, we address each of these three definitions and changes the ADAAA makes to some of the key terms they use.
2. What are “major life activities”?
They are basic activities that most people in the general population can perform with little or no difficulty. The ADAAA provides a non-exhaustive list of examples of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working.
The ADAAA also says that major life activities include the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine and reproductive functions.
3. When does an impairment “substantially limit” a major life activity?
To have a disability (or to have a record of a disability), an individual must be substantially limited in performing a major life activity as compared to most people in the general population.
Access strategies on how to properly engage in the classification process and make reasonable accommodations for the disabled.
4. What are mitigating measures?
Mitigating measures eliminate or reduce the symptoms or impact of an impairment. The ADAAA provides a non-exhaustive list of examples of mitigating measures, including medication, medical equipment and devices, prosthetic limbs, low vision devices (e.g., devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. In addition, the EEOC’s proposed regulation includes as another example of a mitigating measure surgical interventions that do not permanently eliminate an impairment.
5. Can mitigating measures be considered when determining whether someone has a disability?
No. The ADAAA directs that the positive effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity.
6. Can the positive or negative effects of mitigating measures be considered when assessing whether someone is entitled to reasonable accommodation or poses a direct threat?
Yes. The ADAAA’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” All other determinations—including the need for a reasonable accommodation and whether an individual poses a direct threat—can take into account the positive and negative effects of a mitigating measure.
For example, if an individual with a disability uses a mitigating measure that eliminates the need for a reasonable accommodation, then an employer will have no obligation to provide one.
7. Can impairments that are episodic or in remission be considered disabilities?
Yes. The ADAAA specifically states that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.
8. Are there impairments that will consistently meet the definition of disability?
Yes. Some impairments due to certain characteristics associated with them will consistently meet the definition of disability when analyzed in light of the ADAAA’s directives that:
- the term “disability” shall be construed broadly
- an impairment’s substantial limitation on a major bodily function is sufficient to constitute a disability
- the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall be disregarded
- impairments that are episodic or in remission are disabilities if they would be substantially limiting when active.
To help you deal with disability discrimination claims – and to stop them BEFORE they happen – we’ve developed a webinar designed to keep you in compliance (and out of trouble). Introducing The ADA Amendments Act: Strategies to Avoid Discrimination Lawsuits.
This interactive event, presented by noted employment attorney Jonathan Hyman, will help you better understand this landmark legislation. This comprehensive 75-minute session on the new provisions of the ADAAA will teach you:
Register for the interactive webinar now...
- How the law narrowly defined “disability” before the ADAAA.
- How the ADAAA’s expansive definition of disability covers virtually anyone in your organization with a disability.
- How the law even protects non-disabled employees.
- Why it is more important than ever to reasonably accommodate employees’ medical restrictions.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Limit requests for employees to prove religious need to be exempt from grooming code
- Plan to pick up slack when FMLA leave cuts worker output
- You don't need to accept disabled employee's preferred accommodation—just a reasonable one
- 'Excellent' job review can still be considered retaliation