ADA Amendments Research Articles

Pre-Employment Medical Screening and the Americans with Disabilities Act

With the recent unemployment crisis and 72% of disabled people 16 years of age and older not in the labor force, there is certainly a cause for alarm as to whether or not disabled individuals are receiving fair treatment in the pre-employment setting. Employment law attorneys should be cognizant of the medical evaluation process and that employers must procedurally follow a protocol whereby employers must gather non-medical information prior to gathering medical information and only after a bona-fide conditional offer of employment has been made. Another important consideration is that non-disability class members may now bring lawsuits under the broader scope of the ADA Amendments Act and plaintiffs are in a better position to make out a prima facie case. Finally, employment law attorneys should ask clients about any pre-employment questionnaires that may have commingled both medical and non-medical information and be weary of employers who disseminate confidential information recorded via medical inquiries.

ADHD and Test Accommodations: Impact of the New ADA Amendments Act

Free AccessADHD and Test Accommodations: Impact of the New ADA Amendments ActKevin MurphyKevin MurphyFormer Chief of the Adult ADHD Clinic at the University of Massachusetts Medical Center and is currently President of the Adult ADHD Clinic of Central Massachusetts, 300 West Main Street, Bldg. B, Northboro, MA 01532. E-mail: [email protected].Search for more papers by this authorPublished Online:May 2012https://doi.org/10.1521/adhd.2012.20.3.10PDFPDF PLUS ShareShare onFacebookTwitterLinkedInRedditEmail ToolsAdd to favoritesDownload CitationsTrack Citations About Previous article Next article FiguresReferencesRelatedDetails Cited byCited by1. How Is ADHD Assessed and Documented? Examination of Psychological Reports Submitted to Determine Eligibility for Postsecondary DisabilityOnline publication date: 22 December 2014. Go to citation Crossref Google Scholar2. Online publication date: Go to citation Crossref Google Scholar3. Postsecondary ADHD Documentation RequirementsOnline publication date: 16 October 2013. Go to citation Crossref Google Scholar Volume 20Issue 3Jun 2012 Information© 2012 The Guilford PressPDF download

Martinizing Title I of the Americans with Disabilities Act

Prior to the ADA Amendments Act of 2008, relatively few cases proceeded past the initial inquiry of whether the plaintiff was covered by the ADA. Consequently, the scope of an employer’s obligation to provide a reasonable accommodation to an individual with a disability remains under-developed and under-theorized. Now that the Amendments have made it easier for a plaintiff to prove he has a disability under the ADA, we can expect to see more courts struggling with many difficult reasonable accommodation issues. The current case law is chaotic, providing little guidance to employers and courts in determining whether an accommodation is reasonable, and making it impossible to discern any unified principle to explain the chaotic results. This Article does just that. It identifies the scope of an employer’s obligation to reasonably accommodate its employees by proposing a unified approach to the reasonable accommodation provision. I am facilitated in this endeavor by relying on a case under Title III, the public accommodations Title of the ADA. In PGA Tour, Inc. v. Martin, involving professional golfer Casey Martin’s request to use a golf cart during the final rounds of the tournament, the Supreme Court held that the PGA Tour has to provide Casey Martin with a reasonable modification to its no-golf-carts rule because the modification did not “fundamentally alter” the nature of the public accommodation. This inquiry involved two questions: 1) does the modification sought alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally; and 2) does it give an unfair advantage to the individual with the disability. Although an employer is not a golf tournament, the standard from Martin can provide clarity to the vague “reasonableness” standard in Title I’s reasonable accommodation provision. First, using the fundamental alteration standard, courts should determine whether the accommodation would “fundamentally alter” the nature of the employer/employee relationship. Second, when an accommodation places burdens on other employees, courts should determine if the accommodation causes an unreasonable burden by asking the analogous question from Martin of whether the accommodation would give an unfair advantage to the employee with a disability. Thus, although not a perfect fit, Martinizing Title I offers a helpful structure for providing a coherent, unified approach to the reasonable accommodation provision under the ADA.

Open for Business: The ADA Beyond an Employer’s Front Door

Although heralded as an emancipation proclamation for people with disabilities, the Americans with Disabilities Act ("ADA") has done little over the course of its twenty-year history to increase the number or quality of employment opportunities available to individuals with a disability. Title I of the ADA requires employers to make reasonable accommodations for qualified employees with a disability so long as the accommodations do not impose an undue hardship on the employer. In applying Title [ of the ADA, courts consistently drew a bright line at the employer's threshold and refused to compel employers to make any accommodations unrelated to the workplace. Frustrated by the ADA's lackluster results, Congress enacted the ADA Amendments Act of 2008 to extend coverage to individuals who had previously been denied ADA protection as the result of two Supreme Court decisions, which had narrowly defined who qualified as disabled for ADA purposes. Then in 2010, two court of appeals decisions blurred the once bright line excluding non-workplace accommodations when those courts held that an accommodation unrelated to the workplace but related to an employee's ability to get to the workplace may be required by the ADA. This Comment discusses the history of the ADA; the recent extension of the ADA's mandate to include commute-related accommodations; and the netnegative effect this extension is likely to have on disabled employees, disabled job applicants, and businesses.

Perspective on Economic Critiques of Disability Law: The Multifaceted Federal Role in Balancing Equity and Efficiency

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Reexamining Reasonableness: An Analysis of Reasonable Accommodation Under the ADA

The ADA Amendments Act of 2008 (ADAAA) will require courts to address many important interpretive questions raised by the original statute, such as the meaning of reasonable accommodation. After the amendments, the courts attention will shift from determining whether the individual is disabled, to analyzing whether the accommodation is reasonable and determining what accommodations employers will be required to provide. With this new focus, it is even more pressing that the courts develop a proper and consistent framework for analyzing this ambiguous term of art.

Let's Try this Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the 'Regarded As' Prong of the Statutory Definition of Disability

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.” Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let’s try this again” mode, Congress enacted the ADAAA in 2008 as a multi-faceted attempt to override the restrictive court rulings. A crucial cornerstone of the 2008 act is a compromise concerning the scope of the “regarded as” prong of the disability definition. One aspect of the compromise is a dramatic expansion in the coverage of individuals adversely treated on the basis of an actual or perceived impairment. This expansion, however, is tempered by two accompanying limitations that exclude coverage of transitory and minor impairments and that eliminate any duty on the part of employers to provide reasonable accommodations to individuals who qualify as disabled solely under the “regarded as” prong. This article chronicles the history of the ADA, the judicial backlash, and the events leading to the enactment of the ADAAA. The article then proceeds to discuss the likely impact and nagging concerns implicated by the “regarded as” compromise. The ADAAA clearly is welcome legislation that expands the class of individuals protected against disability discrimination and employment decisions premised on stereotypical preconceptions. The “regarded as” compromise, however, also comes with a series of nagging questions that have the potential to hinder the ultimate goals of the new legislation and perhaps even unleash a new judicial backlash. These areas of uncertainty must be closely monitored in the years ahead to ensure that the courts do not again frustrate the ADA’s reinvigorated promise

“Impairment” and performance issues in clinical supervision: After the 2008 ADA Amendments Act.

“Impairment” and performance issues in clinical supervision: After the 2008 ADA Amendments Act.

Congress Seeks to Restore Protection With the ADA Amendments Act of 2008

Congress Seeks to Restore Protection With the ADA Amendments Act of 2008

Ideological Dissonance, Disability Backlash, and the ADA Amendments Act

Congress' recent amendments to the Americans with Disabilities Act disappointed many advocates who sought to have disability determined solely upon a showing that an individual has a physical or mental impairment. They argued this open-ended definition was necessary to equate with other protected classifications such as race and sex, where complainants need not defend their status in order to have the merits of their claims considered. Without this equivalence, courts would continue to view rights as special rights. Although the first version of the legislation that became the ADA Amendments Act of 2008 would have adopted this approach, a compromise was passed that retained the original definition of but articulated several findings and rules of construction explicitly directing courts to give the definition a broad interpretation. This article argues that adopting an open-ended protected class would have exacerbated rather than eliminated judicial backlash against the ADA. This argument has its roots in social science cognitive dissonance theory. The excessively narrow protected class adopted by the judiciary resolved the ideological dissonance between judges' belief that the right of reasonable accommodation is a special right and their desire to avoid granting windfall protection where there has been no systemic disadvantage. An open-ended protected class would lead courts to narrow the right of accommodation in the same excessive manner as they did the protected class. The compromise definition allows courts to filter at least some marginal cases, thus creating less dissonance between the scope of the protected class and the breadth of reasonable accommodation law. This is less likely to induce the same effects that lead to the original backlash against the statute. At the same time, it is broad enough to promote the goals of the ADA and ultimately gain better acceptance of reasonable accommodation as an anti-discrimination principle.

Table of Contents

Abstract Cover Story Support group helps students with psychiatric disabilities Work with counseling services to create support group for students with psychiatric disabilities Student feedback points to skills gained Learn about types of students with Asperger's to best serve them A Brief Conversation with … L. Scott Lissner Roles of DS provider, ADA coordinator do not mesh well Of Counsel Institution wins by proving it did its part to accommodate student Accommodation Use case‐by‐case analysis to help students now ‘disabled’ because of ADA Amendments Act Compliance Review new FERPA regulations to ensure your unit is in compliance Managing Your Office Keep the pounds off with the Ceremony Season Diet Follow basic communication rules to keep events positive Etc. Help students with mental health issues understand their options UNIVERSAL DESIGN Quick tips for creating accessibility for all Students with Asperger's need social directions BEYOND ACCOMMODATION Understand impacts of different medications Legal Roundup POLICIES & PROCEDURES Unattended disability complaints plunge college into legal hot water ACCOMMODATION Student can't prove disability discrimination at community college Section 504 violation provides second chance at final exam ACCESSIBILITY College will address shortage of accessible parking CONFIDENTIALITY Students' transcripts can't disclose disability status PERSONNEL Legitimate reason for firing topples employee's retaliation claim Moderate weariness from weekend work won't support Rehab Act claim Doctor's note could be enough to satisfy FMLA notice requirement DISCRIMINATION Student fails to convince jury that ADHD is a disability ACADEMIC AFFAIRS Arbitration clause keeps student's claims out of court QUICK STUDY

ADA Amendments Act • The Employee Free Choice Act • EEOC: Guidance on ADA Performance and Conduct Standards, Applicant Screening, and Religious Discrimination • DOL: Cleanup Rules for FLSA; Guidance in Role of Attorneys in Perm Process • USCIS: Increases Stay for TN Nonimmigrants • OSHA: Proposed Rule for Crane Use in Construction; Guidance on Working from Home Following Treatment

Employment Relations TodayVolume 35, Issue 4 p. 55-76 Federal Regulations Update ADA Amendments Act • The Employee Free Choice Act • EEOC: Guidance on ADA Performance and Conduct Standards, Applicant Screening, and Religious Discrimination • DOL: Cleanup Rules for FLSA; Guidance in Role of Attorneys in Perm Process • USCIS: Increases Stay for TN Nonimmigrants • OSHA: Proposed Rule for Crane Use in Construction; Guidance on Working from Home Following Treatment for Occupational Injury Scott A. Carroll, Scott A. Carroll sacarroll@vorys.com Office of Vorys, Sater, Seymour and Pease LLP, Cincinnati, OhioSearch for more papers by this authorSteven R. Miller, Steven R. Miller srmiller@vorys.com Office of Vorys, Sater, Seymour and Pease LLP, Cincinnati, OhioSearch for more papers by this author Scott A. Carroll, Scott A. Carroll sacarroll@vorys.com Office of Vorys, Sater, Seymour and Pease LLP, Cincinnati, OhioSearch for more papers by this authorSteven R. Miller, Steven R. Miller srmiller@vorys.com Office of Vorys, Sater, Seymour and Pease LLP, Cincinnati, OhioSearch for more papers by this author First published: 22 January 2009 https://doi.org/10.1002/ert.20226AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume35, Issue4Winter 2009Pages 55-76 RelatedInformation

Table of Contents

Abstract Cover Story Make equality your guiding principle when dealing with misbehaving students Equality should be guiding principle when dealing with misbehaving students with disabilities Get these questions answered when dealing with students' bad behavior Make sure students know they are responsible for their conduct When student poses threat, ensure outcome is balanced A Brief Conversation with … Arlene Stewart Blurring line between academic success center, disability services gives students greater confidentiality Of Counsel Understand that ADA Amendments Act also amends Rehab Act Accommodation Work with faculty, administrators to decide whether to grant accommodation requests that go beyond ordinary Technology Consider accommodations before technology upgrades Managing Your Office Deal with conflicts effectively to maintain good work environment Etc. Individuals with mental health conditions face myriad transition issues UNIVERSAL DESIGN Quick tips for creating accessibility for all Handing out copies of slides remedies vision issue BEYOND ACCOMMODATION Help students figure out what comes after college Legal Roundup ACCESSIBILITY Oklahoma campus facilities fail OCR inspection ACCOMMODATION Professor's refusal to alter academic requirements violates OCR policy Student never requested accommodations, OCR finds POLICIES & PROCEDURES Harvard's grievance procedures fall short of OCR's standards CONFIDENTIALITY FERPA authorizes student aides to access education records ACADEMIC AFFAIRS Doctoral candidate brings claims too late — again Falsified records cannot be excused by student's disability RETALIATION Educators may be personally liable for retaliation under Section 504, ADA PERSONNEL Reinstatement bid under FMLA pierces shield of immunity Mild limitations in major life activities may not maintain suit QUICK STUDY

Table of Contents

Abstract Cover Story Senate version of ADA Amendments Act becomes law Senate version of ADA Amendments Act approved by House Bill will not result in deluge of students seeking accommodations Understand how Senate bill alters ADA A Brief Conversation with … Earl Parks Rich media helps students with disabilities become independent learners Of Counsel Law student goes to court after professor makes in‐class comments Know how to avoid liability Collaboration Help students with disabilities prepare for emergencies Direct students to info they can use Psychiatric Disabilities Be voice of reason on threat assessment team to prevent overreaction Managing Your Office Diversity makes for better work environment Changing demographics reveal importance of acting to help diverse populations Etc. Justice Department, for‐profit institution reach agreement to remove accessibility barriers in leased facilities UNIVERSAL DESIGN Quick tips for creating accessibility for all Student with ADD tunes out at meetings with professor BEYOND ACCOMMODATION Make sure your institution's Web site is accessible to students with disabilities Legal Roundup ACADEMIC AFFAIRS While the play's the thing, so is attendance ACCOMMODATION University denies student request for ban on eating, chewing gum in class OCR complaint challenges legality of university's service animal policy DISCRIMINATION OCR closes investigation when college agrees to take remedial action Voluntary agreement resolves discrimination complaint Plaintiff cannot compel creation of document to satisfy FOIA requests ACCOMMODATION Student can use Section 504 to seek monetary relief for denial of FAPE PERSONNEL Lack of substantial limitations stifles professor's discrimination claim E‐mail, remarks advance employee's discrimination claim Professor's allegation defies statute of limitations QUICK STUDY

The lay of the law (an occasional note).

The ADA Undergoes Some Critical Fine-Tuning: Amendments effective in January 2009 Should Correct the Too-Narrow Interpretations the Courts I. The ADA's original purposes: The Americans With Disabilities Act (the ADA), enacted by Congress in 1990, was greeted with great celebration by persons with disabilities, their families and advocates. The idea was broadminded and straightforward: Congress intended that the ADA protect those with disabilities (including those who were simply perceived as having a disability) against discrimination because their disabilities in access to jobs, education, commerce, entertainment and other benefits public life. If a person was otherwise able to engage in the in question--with the help whatever reasonable accommodations were necessary--s/he could not legally be prevented from participating because his or her or perceived disability. Under a key provision the ADA, a person was deemed to be entitled to protection under the Act if s/he had a disability--an impairment that limits a life activity. II. Restrictive Interpretations by the Courts: Unfortunately, the initial celebration over the ADA's passage turned to disappointment and frustration in many quarters as courts began to interpret and apply its provisions as narrowly as possible. Courts needed to interpret the ADA's provisions defining what a covered disability is; the extent to which a disability must interfere with one's life to warrant protection; the definition life for these purposes, and so on. One by one, the courts' pronouncements reduced the scope protection afforded under the ADA and the categories people who could seek that protection. This judicial narrowing came to a head in two Supreme Court cases. In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Court held that mitigating measures--such as medications or medical devices that ease the effects an impairment--must be taken into account in determining whether a person is limited in a major life activity. Under this interpretation, even if a person suffers discrimination because s/he has an impairment, the court would treat him or her as outside the ADA's protection because medications or other mitigating measures enable the person to function well despite the impairment. In another case, Toyota Motor Mfg. Kentucky v. Williams, 534 U.S. 184 (2002), the Supreme Court considered what a life activity is and narrowed that concept to include only those activities that are of central importance to most people's daily lives. Some federal courts have effectively required that more than one life activity be affected by an impairment before a person falls within the ADA's protection. (See, e.g., Stein v. Ashcroft, 284 F.3d 721 (7th Cir. 2002) where the court found that an inability to lift and to carry objects did not constitute a because those impaired activities were only part the tasks required by the person's employment and did not, therefore, impair the major life working.) Others have said that impairments whose effects are only episodic or intermittent, such as epilepsy or a peanut allergy, do not fall under the ADA because their effects are only temporary. (See, e.g., Land v. Baptist Medical Center, 164 F.3d 423 (8th Cir. 1999), finding that a child's peanut allergy did not substantially limit major life activities eating or breathing because the child's physical ability to eat was not restricted and his ability to breathe was unrestricted when he was not experiencing an allergic reaction). III. The ADA Amendments 2008: This year Congress rejected the courts' narrowing the ADA's scope protection and amended the Act to correct what it considered to be misinterpretations. …