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Is Anyone Not Disabled?Presented by: Jeanne M. Kincaid
Copyright 2011 Drummond Woodsum. All rights expressly reserved.
CAVEAT!
This presentation addresses legal requirements and analysis of federal disability laws
Your state (and perhaps local) government may have laws/rules that more broadly protect the rights of individuals with disabilities
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The ADAAA
Effective January 1, 2009, Congress significantly expanded both Section 504 of the Rehabilitation Act and the ADA
The Equal Employment Opportunity Commission issued final regulations effective May 24, 2011 to reflect these changes in the employment context
29 C.F.R. Part 1630
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What Congress Did Not Do
With limited exceptions, Congress did not alter any of the other ADA provisions governing ADA provisions such as: Essential functions Reasonable accommodations Qualification requirements of
employment and student participation
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Individual With a Disability
Persons who: Have a physical or mental impairment
which substantially limits a major life activity
Have a record of such an impairment which substantially limits a major life activity
Are regarded as having a physical or mental impairment
Regarded As Disabled No requirement that the impairment
substantially limits a major life activity So long as it lasts or is expected to last
more than six months and is not transitory and minor
The myth/stereotype approach is eliminated
But to bring a claim under “regarded as” it must be a “prohibited” action
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The Impairment Prong
Is assessed by documentation Provided by the employee/student
Purpose: To determine disability status To determine appropriate
accommodations
Caveat: Do not demand more than is needed
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The Major Life Activities Prong Caring for oneself Performing manual
tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending
Speaking Breathing Learning Reading Concentrating Thinking Communicating Working The operation of a
major bodily function
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The Substantially Limits Prong
Either unable to perform, or Substantially limited in the condition,
manner or duration of performing the major life activity in comparison to most people in the general population
EEOC regulation
Caution
The EEOC attempted to tackle “learning disabilities” which are by definition measured against one’s potential rather than others
The EEOC kept the “most people” standard but reinforced that mitigating measures must be disregarded in the assessment/analysis
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What It Is Not
An institution may not require evidence that the condition prevents, severely or significantly restricts a major life activity
Our view: If the limitation’s effect on a major life
activity is slight, mild or moderate, it is not enough
But you be the judge
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But wait . . .
An institution may not consider the positive effects of mitigating measures, such as medication, hearing aids “learned behavioral or adaptive neurological modifications”, medical equipment, reasonable accommodations or other interventions, except for the use of ordinary eyeglasses or contact lenses.
EEOC Expansion of Mitigating Measures
Psychotherapy Physical therapy Behavioral therapy
And again, the list is not exhaustive
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Mitigating Measures Refused?
According to the EEOC, an employer may not consider the effects of an employee’s refusal to use mitigating measures in determining disability status
Example: if an employee refuses to take prescribed medication But may consider in the “qualified” or
“direct threat” analysis
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And Just What Are Eyeglasses?
The EEOC rejected the Wal-Mart defense Do not consider where they were
bought or how they look Defined: “lenses that are intended to
fully correct visual acuity or to eliminate refractive error.”
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The Mitigating Measures Trap
Remember, positive mitigating measures should not be considered on the question of disability status
However, mitigating measures can (and arguably should/must) be considered at the accommodation stage
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Intermittent or in Remission
Intermittent conditions or conditions in remission qualify as disabilities if substantially limiting in their active state Rather standard-less
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Temporary Conditions
Very confusing area The EEOC refused to adopt a six
month durational standard Pregnancy?
If pregnancy-related impairment, could be
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Result
It should be relatively easy, with proper documentation, for an employee/student to establish that s/he has a disability
Kincaid Tip
If an institution is going to deny that the individual is disabled – hesitate – and be able to articulate for yourselves a fairly clear rationale
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Most Battles
Should be fought on the accommodation front Are any accommodations necessary and
reasonable to provide equal access?
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Accommodations & 3 Standards
“Actually” disabled May or may not require accommodation
“Record of” disabled May or may not require accommodation
Lone EEOC example cited: leave/schedule change for follow up
OCR has historically said no accommodation
“Regarded as” disabled No right to accommodation
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