Page 44 - MetalForming July 2009

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelaw-
offices.com
The Americans with Disabilities Act (ADA) affords protection to a class of citizens who have a disability. But what does it mean to be disabled under the ADA? This issue has spawned considerable litigation under this federal law.
Under the ADA, a person is disabled if they meet one of the following three criteria: 1) The person has a physical or mental impairment that substantially limits one or more of the person’s major life activities, 2)
There is a record of
such an impairment
of that person, or 3)
The person is regard-
ed as having such an
impairment.
disability. “Regarded as,” the ADA equiv- alent of a discrimination claim based on age or race, is a discrimination claim based on a disability, whether or not there actually is a disability.
The ADAAA has changed the level of proof required to show that an indi- vidual has been regarded as having a disability. Prior to the ADAAA, it had to be shown that a person did not have an impairment that substantially limited a major life activity, but that the employ-
42 METALFORMING / SPECIAL ONLINE-ONLY ISSUE 2009
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YOU & THE LAW DOUGLAS B.M. EHLKE
Changes to the Meaning of “Disability” Under the ADA, Part 2
In 2008 (effective
January 1, 2009)
President Bush signed
into law the ADA
Amendments Act of
2008 (ADAAA). The
ADAAA has changed
how we interpret the
determine whether or not a person has a disability.
Last month, in Part 1, we focused on how the ADAAA has changed how the ADA views whether or not a person has a physical or mental impairment that substantially limits one or more of the person’s major life activities.
This month, in Part 2, we look at how the ADAAA has changed how a person is regarded as having an impairment.
First, what does “regarded as” mean? Under the ADA, to say that a person was “regarded as” having a disability means that the person was discriminated against by the employer for having a
Employers are not required to offer accommodations
to employees
who claim they were “regarded as” disabled.
above criteria to
er treated the per- son that way. Under the ADAAA, this def- inition has been expanded to mean that an employer will be deemed to have regarded a person as having a disability if that person has been subjected to an action prohibited under the ADA because of an actual
or perceived physical or mental impair- ment, whether or not that impairment limits or is perceived to limit a major life activity. In other words, meeting the “major life activity” threshold has been removed. However, the ADAAA does exclude impairments that are transito- ry (expected duration of six months or less) and minor.
Prior to the ADAAA, the Equal Employment Opportunity Commission had taken the position that an employ- er does not have a duty to provide a rea- sonable accommodation to someone who is only covered under the ADA because that person is regarded as hav- ing a disability. The theory behind this