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So you’re telling me there’s a chance: ADAAA gives employees another opportunity

published in Oklahoma Employment Law Letter | May 1, 2012

By Joshua W. Solberg

The Americans with Disabilities Act (ADA) was overhauled by Congress with the enactment of the ADA Amendments Act of 2008 (ADAAA). The ADAAA made a number of sweeping changes by expanding the definition of “disability.” In adopting the ADAAA, Congress also directed the Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations and begin broader enforcement of disability rights. We’re now seeing cases in which employees have a better chance of proving they suffered disability discrimination under the ADAAA.

Sea change in the ADA

The new regulations and the ADAAA define “disability” using the same three prongs that existed under the ADA: (1) a physical or mental impairment that substantially limits one or more major life activities (i.e., an “actual disability”), (2) a record of a physical or mental impairment that substantially limits a major life activity (i.e., a “record of” a disability), or (3) an employer’s belief that an employee has an actual or perceived impairment (i.e., being “regarded as” disabled). However, two changes to the definition have dramatically expanded its application.

First, under the “actual disability” prong, whether an individual is “substantially limited” has been expanded. In making the evaluation, a court must compare the employee to “most people in the general population.” Second, under the “regarded as” prong, an employee is no longer required to show that his employer believed he was substantially limited in a major life activity. Instead, it’s sufficient to show that he was subjected to an adverse employment action (such as termination) because of an actual or perceived impairment.

Those significant changes have given hope where there was none to employees claiming disability discrimination. A recent case that provides an example of the new proof requirements occurred right here in Oklahoma.

Evidence of the sea change

Kelly Johnson sued her former employer, Farmers Insurance Exchange, for several claims, including disability discrimination in violation of the ADA. Farmers Insurance challenged her disability discrimination claim, arguing that she failed to provide evidence that she had a disability defined by the ADA. The company claimed Johnson failed to demonstrate that she had an actual disability or a record of a disability because her alleged impairment ? obstructive sleep apnea ? didn’t substantially limit a major life activity.

The court rejected Farmers Insurance’s argument, noting the definition of “disability” has been broadened to increase the coverage available to employees. The court further recognized that the EEOC has broadened its implementing regulations to likewise expand the definition of disability. The broadening of the definition allowed Johnson’s case to proceed; in the past, it wouldn’t have survived pretrial dismissal arguments.

Farmers Insurance also argued that Johnson’s disability claim failed under the “regarded as” prong. The company argued (again, under the old law) that it couldn’t have regarded her as disabled because it didn’t believe her sleep apnea substantially limited one or more major life activities. However, the court accepted Johnson’s claim based on the broader standards applicable under the ADAAA. Under the ADAAA, “whether or not the impairment substantially limits a major life activity is no longer relevant under the definition of ‘regarded as.’ ” Instead, “the employer is deemed to have regarded the individual as having a disability if it makes an adverse decision based upon [its] belief that the individual has an impairment.”

At the end of the day, it’s clear that Congress’ expansion of the ADA, as embodied in the ADAAA and the EEOC’s corresponding broader implementing regulations, made all the difference between Johnson’s case being rejected at the first opportunity (with minimal expense to the employer) and what could ultimately be years of litigation to determine the validity of her claims. Johnson v. Farmers Insurance Exchange, 25 A.D. Cases (BNA) 1793 (W.D. Okla., 2012).

Try to stay dry

To avoid getting caught in the swell of the recent sea change caused by the ADAAA, consider taking the following steps:

  • Become informed and train your HR professionals and supervisors on employees’ rights and your company’s obligations under the ADA and the ADAAA.
  • Review your handbook, policies, and procedures pertaining to equal employment opportunity, harassment, discrimination, and accommodation. Specifically, you should have a policy or procedure that enables you to engage in a good-faith (and well-documented) interactive process with employees who need or are seeking an accommodation.
  • Review and implement (if necessary) well-written and thorough job descriptions that adequately and accurately lay out the duties and requirements of the jobs at your company.