§7.2 The Americans with Disabilities Act of 1990

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§7.2 THE AMERICANS WITH DISABILITIES ACT OF 1990

§7.2-1 Introduction

The Americans with Disabilities Act of 1990 (ADA) provides a broad range of protections for the estimated 43 million (as estimated at the time the ADA was drafted) Americans who have one or more physical or mental disabilities. Congress concluded that persons with disabilities continue to be isolated and segregated; that discrimination continues to persist in critical areas such as employment, housing, public accommodations, education, transportation, communications, and access to public services; and that in many cases no effective legal recourse existed to address it. 42 USC §12101(a). The ADA was intended to eliminate those practices and to provide legal remedies to persons who suffered from them. 42 USC §12101(b).

§7.2-1(a) The Americans With Disabilities Act Amendments Act Of 2008

Congress enacted the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to clarify to the courts that the concept of disability under the Americans with Disabilities Act (ADA) is intended to be broadly, rather than narrowly, construed. The ADAAA overturned several Supreme Court decisions regarding the definition of disability, the ameliorative effects of mitigating measures, and the definitions of substantially limits and major life activities as interpreted by the Court.

Congress stated that the ADAAA would take effect on January 1, 2009, and it is clear that any alleged discrimination occurring after that date falls under the provisions of the ADAAA.

Although the ADAAA substantially affects the judicial history of the ADA, there is no indication that it was intended to apply retroactively. In general, the courts have ruled that statutes are not to be applied retroactively because it is unfair to hold a defendant liable for a law that could not have been reasonably foreseen. See Milholland v. Sumner County Bd. of Educ., 569 F3d 562, 567 (6th Cir 2009) (ADAAA not applied retroactively); Lytes v. DC Water & Sewer Auth., 572 F3d 936, 941-942 (DC Cir 2009); Fredricksen v. UPS, Inc., 581 F3d 516, 521 n 1 (7th Cir 2009); and EEOC v. Agro Distrib., LLC, 555 F3d 462, 470 (5th Cir 2009).

§7.2-1(b) EEOC Regulations Implementing The ADAAA

The Equal Employment Opportunity Commission (EEOC) issued final rules implementing regulations on March 25, 2011. The final rules do not depart in any significant way from the Americans with Disabilities Act Amendments Act (ADAAA). Rather, the regulations repudiate specific case precedents and concepts that had been used by employers to defend against disability discrimination claims.

The new rules, like the ADAAA itself, significantly expand the definition of disability under the law by expanding and simplifying the component parts of the definition. The EEOC makes clear, by repetition and emphasis, that the focus for employers and the courts should not be on the threshold question of whether a disability exists, but on engaging in the interactive process and providing reasonable accommodations whenever doing so does not create an undue burden on the employer.

§7.2-1(c) Rationale and Purpose

The Americans with Disabilities Act (ADA) was intended to mirror "the Nation's proper goals regarding individuals with disabilities" by ensuring "equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." 42 USC §12101(a)(7). Congress intended to provide "a clear and comprehensive national mandate" accompanied by "clear, strong, consistent, enforceable standards" to prohibit and eliminate discrimination against people with disabilities, and to give the federal government a central role in the enforcement process. 42 USC §12101(b)(1)-(2).

The Americans with Disabilities Act Amendments Act of 2008 was intended to carry out the ADA's original objectives by reaffirming the broad scope of protection that is intended by the ADA and undoing several restrictive Supreme Court interpretations of the ADA.

§7.2-1(d) Protections Offered

The Americans with Disabilities Act (ADA) provides its broad range of protections for Americans with disabilities through five separate titles, each with its own mandates and (with the exception of Title V) enforcement mechanism. Title I (Equal Employment Opportunity) provides individuals with disabilities the same employment opportunities and benefits available to others without disabilities by requiring employers to accommodate the disabilities of qualified applicants and employees, unless an undue burden would be placed on the employer. This section focuses on Title I as the other titles are not primarily related to employment law. Following is a brief overview of those titles:

• Title II prohibits discrimination on the basis of disability in state and local government services.

• Title III prohibits discrimination on the basis of disability by public accommodations and in commercial facilities.

• Title IV requires telephone companies to develop intrastate and interstate telephone relay service in every state.

• Title V contains a variety of provisions relating to other statutes and to insurers and benefits.

• Title I does not "guarantee equal results, establish quotas, or require preferences favoring individuals with disabilities over those without disabilities"; it is intended to ensure access to equal employment opportunities based on merit. Appendix to 29 CFR pt 1630 ("Background").

The Equal Employment Opportunity Commission (EEOC) regulations implementing Title I of the ADA are codified at 29 CFR part 1630. The Appendix to part 1630 is titled Interpretive Guidance on Title I of the Americans with Disabilities Act.

Rules for the EEOC's handling of joint complaints under the ADA and §504 of the Rehabilitation Act (applicable to federally financed or assisted programs) are set forth in 29 CFR part 1640.

PRACTICE TIP: The lawyer representing a plaintiff in a Title I case should review the potential applicability of the other ADA titles. For example, Title II covers public services, and, depending on the nature of the problem, Title III (public accommodations) could also apply. In general, each title has its own rights, remedies, and enforcement mechanisms.

NOTE: The ADA is also discussed in the following publications: Regulation and Taxation of Real Estate ch 14 (Oregon CLE 1995 & Supp 2003); 2 Torts ch 25 (Oregon CLE 2006); and 1 Damages ch 15 (Oregon CLE 1998 & Supp 2007). See also chapter 21.

§7.2-1(e) Relationship to Other Laws

The Americans with Disabilities Act (ADA) "shall [not] be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection." 42 USC §12201(b). This provision ensures that the ADA does not displace health and safety standards established by other federal laws and regulations. However, "[t]he employer's defense of a conflicting Federal requirement or regulation may be rebutted by a showing of pretext, or by showing that the Federal standard did not require the discriminatory action, or that there was a nonexclusionary means to comply with the standard that would not conflict with [Title I]." 29 CFR §1630.15(e) (Appendix). On the other hand, health and safety requirements established by state or local laws are enforceable only to the extent that they are consistent with or more protective than ADA requirements.

PRACTICE TIP: State laws may provide additional protections or cover conditions that would not be considered protected disabilities under the ADA. Therefore, the lawyer should always investigate state law in pursuing or defending a disability discrimination claim. Compare 42 USC §12211(b) (excluding transsexualism and gender identity disorders from ADA definition of disability) with Doe v. Boeing Co., 846 P2d 531, 121 Wash 2d 8 (1993) (transsex-ualism is an abnormal condition for purposes of qualifying as a protected handicap under Washington law because it is a medically recognized condition with a prescribed course of treatment). See also §7.3-3.

§7.2-1(e)(1) Leave Laws

An employee's need for medical leave, pregnancy leave, a reduced work schedule, or reinstatement after an injury or illness may implicate a complex interplay among the Americans with Disabilities Act (ADA), the federal Family and Medical Leave Act of 1993 (FMLA), the pregnancy protections of Title VII, and state laws governing family and medical leaves, disabled workers, and workers with compensable injuries. See chapter 20 for discussion of FMLA and the Oregon Family Leave Act (OFLA).

An Equal Employment Opportunity Commission (EEOC) fact sheet addressing employers' questions about the interplay among the ADA, FMLA, and Title VII is printed at 8 Fair Employment Practices Manual (BNA) 405:7371, and is available online at < www.dol.gov/whd/regs/compliance/whdfs28.htm > and in print from the EEOC Office of Communications and Legislative Affairs. EEOC Enforcement Guidances and related documents are available on the agency's Web site, < www.eeoc.gov/policy/guidance.html >.

NOTE: An employee who has exhausted his or her FMLA and/or OFLA leave may still have a right under the ADA to additional leave for medical treatment, recovery, or a modified work schedule if (1) the employee is a person with a disability who can perform the essential functions of the position with or without reasonable accommodation, and (2) the requested leave or modified work schedule would not impose an undue hardship on the employer. See EEOC: Guidance on Reasonable Accommodation And Undue Hardship Under the ADA, section on Leave, reprinted in 8 Fair Employment Practices Manual (BNA) 405:7601, and available online at < www.eeoc.gov/policy/docs/accommodation.html#leave >.

§7.2-1(e)(2) Workers' Compensation Laws

In September 1996, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on the relationship between the...