Page 72 - An Indispensible Resource for Being a Credible Activist

Act Amendment Act. (For our purposes, we will continue to refer to it as the ADA through-
out the book.)
As one of the final acts of his presidency, President Bush expanded the ADA to include
protection from retaliation for anyone who advocates for anyone else to have their ADA rights
addressed and met. Per the EEOC, the Act, effective as of January 1, 2009, “makes important
changes to the definition of the term ‘disability’ by rejecting the holdings in several Supreme
Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to
make it easier for an individual seeking protection under the ADA to establish that he or she
has a disability within the meaning of the ADA. The Act retains the ADA’s basic definition of
‘disability’ as an impairment that substantially limits one or more major life activities, a
record of such an impairment, or being regarded as having such an impairment. However, it
changes the way that these statutory terms should be interpreted in several ways.
“Most significantly, the Act directs EEOC to revise that portion of its regulations defin-
ing the term ‘substantially limits’, and expands the definition of ‘major life activities’ by
including two non-exhaustive lists. The first list includes many activities that the EEOC has
recognized (e.g., walking) as well as activities that EEOC has not specifically recognized
(e.g., reading, bending, and communicating). The second list includes major bodily func-
tions (e.g., functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).” 5
Per the EEOC, the amendment also:

● States that mitigating measures other than “ordinary eyeglasses or contact lenses”
shall not be considered in assessing whether an individual has a disability.
● Clarifies that an impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.
● Changes the definition of “regarded as” so that it no longer requires a showing
that the employer perceived the individual to be substantially limited in a major
life activity, and instead says that an applicant or employee is “regarded as”
disabled if he or she is subject to an action prohibited by the ADA (e.g., failure
to hire or termination) based on an impairment that is not transitory and minor.
● Provides that individuals covered only under the “regarded as” prong are not
entitled to reasonable accommodation.” 6

As we have learned, sometimes employers misguidedly engage in unlawful retalia-
tion. HR Tool entitled “Sample Memo Concerning/Alleging Retaliation for Advocating for
the ADA/ ADAAA,” on pages 66–67, shows an example of how to respond to such a sit-
uation. Another HR Tool entitled “Sample Memo Addressing Workplace Safety Concerns,”
on pages 67–69, shows how one might respond to questions about a company’s compli-
ance with both OSHA workplace safety regulations and ADA/ADAAA.

❱❱ JAN’S ACCOMMODATION AND COMPLIANCE SERIES

JAN’s Accommodation and Compliance Series (http://www.jan.wvu.edu/bulletins/adaaa1
.htm) is designed to help employers determine effective accommodations and comply with

CHAPTER 4 • Legal Issues for Credible Activists 55