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You’re listening to the Disability Law Lowdown, Show #28, with your host, Jacquie Brennan.

[music plays]

Jacquie Brennan: Welcome to the Disability Law Lowdown podcast. Today I’ll be interviewing Joe Leibovich, an attorney who recently started a law blog. His first posting was about the ADA Amendments Act. We’ll be talking a little bit about both of those things.

Welcome to the Disability Law Lowdown, Joe. Can you tell us a little bit about yourself?

Joe Leibovich: Hi, thanks for having me, Jacquie. My name is Joe Leibovich. I’m an attorney with Shuttleworth Williams PPLC in Memphis. I’ve recently started a blog called The Legalverse, www.thelegalverse.com. I’ve been practicing in primarily the employment law field for, oh gosh, thirteen years now.

Jacquie: Wow. That makes you sound pretty old, Joe.

Joe: I’m feeling it, Jacquie, believe me. (laughs)

Jacquie: (laughs) So can you tell our listeners a little bit about the ADA Amendments Act? I mean, the ADA was passed in 1990 and why did it need to be amended?

Joe: Well, I think that’s a question of opinion, obviously, but I think the reason it was amended was a series of Supreme Court cases that came down the pike, and I think those cases hit in areas I think Congress didn’t intend them to hit when the drafted and passed the ADA originally in 1990. I think, as you’re well aware, the main cases would be the SuttonTrilogy and then the Toyota Motors/ Williams case.

Jacquie: Tell us about those cases then.

Joe: Well, the Sutton was three cases, obviously from the name, that the Supreme Court heard at the same time back in 1999. The main case, the primary case, was Sutton vs. United Airlines and what these cases all had in common was they were looking at the definition of disability.

The issue in the cases was whether someone is disabled under the terms of the ADA if their disability could be mitigated by either medication or equipment or even by using their own brain power. For example, in Sutton it was a case of myopic twins who wanted to work for an airline. The Court ruled that they were not covered by the ADA because their condition could be mitigated by the use of glasses.

So that really redefined disability. In other words, if you could mitigate the disability, you were no longer disabled and therefore did not have ADA protection. That obviously changed the playing field quite a bit from where it was as did Toyota Motor Manufacturing vs. Williams which was a 2002 case where Ms. Williams was an employee at a manufacturing facility. She basically had bilateral carpal tunnel syndrome and some other problems and there was some argument in the case about how disabled she really was. The Court ultimately found that she was not disabled under the ADA because she could do things that were central to one’s individual or normal life. In other words, she could take care of herself, take care of her hygiene, that sort of thing. The Court ruled that if that were the case, you’re not covered under the ADA in that particular situation.

I think that case kind of gutted the ADA as far as plaintiff’s lawyers were concerned. Employers, of course, were very happy with that decision. The argument then became, nine times out of ten, whether or not somebody was disabled, and employers started winning summary judgments quite a bit more frequently based on these decisions.

That’s where we were. Congress, this past session felt that these decisions went against what the intent of the ADA was, so they passed the AAA to essentially overrule the Sutton Trilogy and the WIlliams case.

Jacquie: So that’s what they did? They just said those cases don’t count anymore?

Joe: I think they literally said that. Those were the primary purposes of the Act, that they legislatively redefined the Act and cases, of course, going forward would have to apply the new rules. The law itself doesn’t technically say it’s not retroactive, but it pretty clearly is and the Department of Labor has already taken that position, as well.

Jacquie: That it isn’t retroactive?

Joe: That it is not retroactive, that it only deals with incidents from the date of the enactment of the law, or the effective date of the law which was January first of 2009.

Jacquie: I think that’s completely true of employment cases. There’s one case, I think we have so far, where the person was asking for prospective relief, you know, relief that would come in the future in the form of accommodation for test taking. I think this was at a post-secondary level where they’ve applied the ADA Amendment Act because of the relief that he’s seeking is in the future. So it’ll be interesting to see how courts view that for employment cases, as they make their way there. It’ll take a while.

Now, are there people who are covered by the ADA this year who weren’t covered by the ADA last year?

Joe: I think there clearly are. People who are covered by the ADA AAA, I mean the amendments to the ADA, that weren’t last year simply because of the definition of disability. Individuals who, for example, can control their disability to the extent that they can work around it and therefore are mitigated are covered now. People who are suffering from conditions that are in remission or are episodic, in other words there are periods when their disability is active and there are other periods when it is not, they now have coverage under the ADA where they arguably were not previously.

The thing about the way the ADA was, and to a certain extent still is, is that you have to look at it on a case by case basis. You always had to, you still always do, so it is hard to say that somebody was or was not covered previously. That was somewhat a role of the dice going into court at any time. But I think that now there’s going to be greater coverage for individuals than there was previously.

Jacquie: You mentioned if they have an intermittent thing of something that’s in remission, so now is that looked at as if it were in its active state? I mean, I guess, a person who has a seizure disorder and has maybe one or two seizures a month. Before they wouldn’t be considered substantially limited because one or two seizures didn’t reach that limit of substantial that they looked at before. But now do you look at it in its active state, like in the middle of a seizure they’re substantially limited in a major life activity and therefore they would now be covered?

Joe: Yes, that’s exactly what it would be. When somebody is suffering from a condition that’s episodic, to determine whether or not they have ADA coverage, you look at whether or not they would be covered when their condition is active. So, yes, that’s a perfect example, when someone has episodic seizures situations, you certainly would look at whether or not they would be defined as having a disability when their seizures were active.

Jacquie: Right. Do you have any particular advice for employers?

Joe: This is something I know there might be some controversy or some question about. One thing this amendment did was expand the definition of disability as far as individuals that are regarded as having a disability. In those cases, as many of you know, under the ADA if you discriminate against someone you regard as having a disability that’s the same as discriminating against someone with a disability.

The thing the ADA AAA did was it expanded the definition of “regarded as”, at least from where it had been defined under the ADA itself. Now, at least the way it’s written, it seems to be broader coverage for individuals regarded as having a disability than individuals with an actual disability.

Jacquie: So how does that affect the way you would advise employers in that situation then?

Joe: I think employers have to be very careful whenever they’re dealing with anybody who either actually has a disability or arguably has a disability or who you think might have a disability. You’ve got to treat people individually and you certainly can’t discriminate, which includes refusing to hire, termination, discipline, any of those things because of their actual or perceived disability, even if the disability you perceive them to have is less than would be covered under the ADA.

So for employers, you really need to make hiring, firing, disciplinary decisions based on reasons unrelated to actual or perceived disability.

The second part to that is you just have to employ your good practices, your best practices that you employ with any employment situation. You want to document the reasons for any termination or discipline. You certainly want to keep records of any discipline you give going forward, for any counseling you give going forward, any job performance issues unrelated to disability or perceived disability. You want to make sure that isn’t entering the equation, that you are not making decisions that are based on a real or perceived disability. Your notations really need to reflect that and certainly need to not have commentary about perceived disabilities.

Jacquie: So do you think now, in the Title One employment cases, we’ll be seeing cases that are really more about access and accommodation as opposed to just that definition?

Joe: I think that there’s going to be a shift from the cases being mainly about the definition of disability. I think that’s absolutely accurate. We certainly will get back to arguing about what is or is not a reasonable accommodation. I think you’re going to see more of that now.

But I do think there’s going to be a lot of arguing about whether or not someone who is regarded as having a disability does in fact have a disability. I think that’s where that argument is going to move to, as far as defining individuals with a disability. I think for disabilities, as the law contemplates, I think there’s going to be less litigation where that’s an issue. But I do think that’s going to move to the arena where “regarded as” is the issue.

Jacquie: What was their reasoning to change that “regarded as” prong of the definition?

Joe: I think the statement the Congress is making is that it’s going back to a definition of disability as set by Arline, an older case under the Rehabilitation Act. That’s what Congress is setting forth and I think there are commentators on both side of the aisle on this that would argue that’s it’s just going back, it’s pushing a reset button on what Congress intended and what the ADA said all along. Other commentators are saying this is a much broader enactment of what a disability is, at least under the “regarded as” prong.

So I think the Congressional intent was to go back to the Congressional intent of 1990. Whether or not that’s really what’s going to happen as this plays the courts, I think that remains to be seen.

Jacquie: So, tell me a little bit about your law blog. What made you decide to start that and what are you doing with that?

Joe: Well, it’s very new. I started it last week and I just thought this issue was of interest to employers. There’s always a great deal of confusion about what the ADA is and what it does for employers and employees, so I thought this was a good opportunity to just start a discussion of various issues as they come up and give my take on them. So I wanted to get my voice out there and offer some guidance to employers who might have questions about what they should do to comply with the law.

Jacquie: That’s a good idea. So give us, one more time, the address where people can get to your blog.

Joe: Sure that is ww.thelegalverse.com (spells it)

Jacquie: Great! Thanks so much, Joe, for your insight today. We really appreciate it.

Joe: Thank you, Jacquie. I appreciate you having me on.

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The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.





The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.