As if employers weren’t already scratching their heads trying to decipher 2008’s amendments to the Americans with Disabilities Act Amendments Act of 1990, the Equal Employment Opportunity Commission’s proposed new regulations will soon become final, creating an entirely new ADA landscape for employers.
The most striking change, first initiated by the ADA Amendments Act and soon to crystallize under the EEOC’s new regulations, will directly impact the focus of future ADA litigation.
Before, most ADA cases focused on whether an individual’s impairment was an actual disability under the ADA. But because the new act – and now the upcoming regulations – emphasize a much broader interpretation of those disabilities, future cases will shift their focus to the employer’s compliance with the act. Under the harsher glare of this closer scrutiny, employers should be wary of other anticipated impacts of the coming EEOC regulations.Evidentiary standards and mitigation
The new regulations substantially lower the evidentiary standard for “regarded as” claims under the ADA. Previously, successful ADA plaintiffs alleging they were improperly regarded as being disabled under the act had to show the employer regarded them as either unable to perform or severely restricted in performing a major life activity because of a mistaken belief about impairment. Under the new regulations, such a plaintiff would only need to show the employer believed he could not perform the job at issue.
For example, an employer may refuse to hire an individual with a facial tic, believing that the person has Tourette’s syndrome. Within the new ADA landscape, such a decision could leave the employer exposed. If a person has a mere nervous tic without knowing its cause, and the employer takes an adverse employment action on the basis of the tic alone – such as refusing to hire – the individual may find the new landscape more favorable to ultimately succeeding in alleging “regarded as” disability discrimination.
The changes, however, are not completely tilted against the employer in “regarded as” cases. Before, an employer might be ordered to accommodate a successful plaintiff’s “regarded as” disability. The new regulations provide no accommodation requirement for successful “regarded as” plaintiffs.
Previously, if an employee had an impairment that could be mitigated – a diabetic who took insulin or someone with poor eyesight who wore glasses, for example – that person was not impaired as defined by the ADA following a series of Supreme Court decisions.
The new EEOC regulations clarify the ADA Amendments Act that physical conditions can be impairments requiring reasonable accommodation even if the person uses mitigating measures.Working as a major life activity
Before the ADA amendments, federal appeals courts were split as to whether working was a major life activity in the analysis of whether a condition rose to the level of a disability. Now, the EEOC’s new regulations make crystal clear the ADA Amendments Act’s tenet that working proposed regulations focus on a person’s current job or potential job to determine if the individual is substantially limited in the major life activity of working. No longer will the analysis focus merely on whether the individual is unable to perform a broad class of jobs because of an impairment.
Medical conditions often impair people from performing their actual jobs, but they may not preclude them from a broader class of jobs. The practical impact for employers is that individuals may now be able to more easily claim the employer has a greater obligation to reasonably accommodate those conditions.
The new regulations also expand the concept of major life activities beyond the ADA amendments. Under these proposed regulations, the EEOC would consider activities such as reaching, sitting or interacting with others to be major life activities. Get ready
Proactive employers should begin reviewing their job descriptions and accommodations procedures. They should begin training – and continue to train – their supervisors in how the ADA Amendments Act and EEOC regulations impact the workplace. As before, employers should document employment actions and accommodations requests, as well as responses to those requests. Not only does good documentation aid an employer in making future decisions, it also plays a critical role in any employment-related litigation, should the need arise.
Moreover, employers should be prepared to respond to increased requests for accommodations and claims of disability discrimination. The landscape is changing; employers should be prepared to comply or risk exposure.Jay M. Dade is of counsel with Polsinelli Shughart PC in Springfield. He may be reached at email@example.com.