E-Newsletter

October 2009

A New Day Under the ADA:
On September 29, 2009, The EEOC Published Its Proposed Regulations
Are You Ready For The Enforcement Of This Law?

Thomas P. Krukowski, Esq.

The Americans with Disabilities Act Amendments Act (ADAAA), effective January 1, 2009, and its proposed EEOC regulations, published on September 23, 2009, may have created the most ambiguous employment law. Now, more than ever, an employer's lack of knowledge could result in unnecessary or abusive litigation. In 20 pages, the EEOC's Proposed Rule, and the ADAAA, effectively reverse almost 20 years of court decisions and employment practices.

These amendments emphasize greater protections for impaired individuals by expanding the list of "major life activities," eliminating consideration of mitigating measures, including impairments that are episodic or in remission, and expanding coverage under the "regarded as" prong of discrimination.

The ADAAA and the EEOC's Proposed Rule emphasize that the definition of "disability" will be interpreted broadly and favorably to any individual claiming disability discrimination. Therefore, both also focus the analysis on whether disability discrimination occurred, and not the threshold issue of whether an individual meets the definition of "disability." The issue becomes whether or not there is any evidence or inference based on circumstantial evidence (timing of the decision, truthfulness of the employer's articulated reason for the adverse decision), to link the decision to the individual's impairment. The key question is, are the two issues of impairment and the employer's decision unrelated or linked?

Given the new focus, employers will often need to put less emphasis on questions regarding the ADA's coverage and ask more questions pertaining to liability, such as, why did we make the decision? If the "disability" disqualifies an individual for employment, can we prove it? Will the individual admit it? Is there an issue of accommodation and are the requests reasonable? Is there an issue of undue hardship or a direct threat associated with any accommodation? Can we prove these arguments with facts and the individual's admissions? When we have a dispute, how will we resolve it? If issues remain, what can we prove?

The language of these three prongs of the ADA have not changed; however, the application and interpretive guidelines of the EEOC have made sweeping changes. The major changes include the following:

1. Substantial limitation no longer means significant or severe restrictions but, rather, there is now a lower standard in which an impairment must merely limit an individual in performing a major life activity or function, which most people in the general population can perform with little or no difficulty.
   
   
2. Added new items to the list of major life activities and rules of construction are to be favorable to employees and the analysis should be based on a common-sense review that does not require an exacting or statistical analysis.
   
   
3. When determining whether an impairment is episodic or in remission, the impairment is to be evaluated in its active state.
   
   
4. The new law eliminates the consideration of all mitigating measures, except for ordinary eyeglasses or contact lenses, when evaluating a disability claim.
   
   
5. The new law clarifies the "record of," or second, prong of the ADA. The EEOC, for example, provides that an applicant who previously received treatment for prostate cancer and whose doctor indicated that he no longer had cancer nevertheless has a "record of" a substantially limiting impairment.
   
   
6. The "regarded as," or third, prong of the ADA no longer requires evidence that the employer perceived an individual to be substantially limited in a major life activity.
   

For more information contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.