WEBVTT 00:00:00.000 --> 00:00:02.005 Welcome to I think probably only 00:00:02.006 --> 00:00:05.001 the second brown bag we've had this fiscal year. 00:00:05.002 --> 00:00:07.002 Last year we did probably three or four. 00:00:07.002 --> 00:00:09.003 This year it's been a busy year, and we haven't 00:00:09.003 --> 00:00:10.004 had a chance to have as many. 00:00:10.005 --> 00:00:12.003 But we're happy to have this one. 00:00:12.003 --> 00:00:14.002 We have with us to talk to you today 00:00:14.003 --> 00:00:15.002 Commissioner Feldblum. 00:00:15.003 --> 00:00:18.001 She's going to talk to you about the ADA Amendments Act. 00:00:18.001 --> 00:00:20.005 She claims that it's fun and easy. 00:00:20.006 --> 00:00:23.001 We'll find out if it's actually fun and easy. 00:00:23.002 --> 00:00:27.009 She's going to give you sort of a quick background. 00:00:28.000 --> 00:00:31.003 Some foundational information about the ADA Amendments Act, 00:00:31.004 --> 00:00:33.007 but I think a lot of people in the room probably have 00:00:33.007 --> 00:00:35.002 a good working knowledge. 00:00:35.002 --> 00:00:36.008 So she'll talk for about 20 minutes, 00:00:36.008 --> 00:00:38.005 and then we're gonna open the floor for questions. 00:00:38.005 --> 00:00:40.006 So hopefully, you all came prepared with questions. 00:00:40.007 --> 00:00:44.002 The slideshow that she's going to use we're going to 00:00:44.002 --> 00:00:47.000 email out, to everyone, after the fact, 00:00:47.000 --> 00:00:49.007 so, no need to ask me for that later. 00:00:49.007 --> 00:00:53.001 And, with that, I will turn it over to Commissioner Feldblum. 00:00:53.002 --> 00:00:57.005 COMMISSIONER CHAI FELDBLUM: Thank you. And this mic is working, excellent. 00:00:57.005 --> 00:01:01.000 OK, well, I have no idea if it can be fun and easy. 00:01:01.000 --> 00:01:02.007 But that's my goal. 00:01:02.008 --> 00:01:06.009 I absolutely want to make sure that we have time for the questions 00:01:06.009 --> 00:01:11.002 because, as JoLinda said, and JoLinda does just amazing, 00:01:11.003 --> 00:01:14.003 wonderful stuff in terms of training, I love it. 00:01:14.003 --> 00:01:17.008 You guys over there you might want to come over here 00:01:17.008 --> 00:01:21.003 just so that you're not craning your neck. You know, 00:01:21.003 --> 00:01:24.005 because I apparently have to stay on this side, I've been told, 00:01:24.006 --> 00:01:26.000 in terms of the camera. 00:01:26.001 --> 00:01:31.009 So I'm going to go through this slide show somewhat quickly, 00:01:31.009 --> 00:01:35.003 just so that I can make sure that we can then open it up for 00:01:35.003 --> 00:01:37.004 questions and conversation. 00:01:37.004 --> 00:01:41.009 I put together this version of this Power Point, 00:01:42.000 --> 00:01:48.000 shortly after March 25th when EEOC issued its bipartisan regulations, 00:01:48.001 --> 00:01:52.006 as a means of training EEOC investigators and lawyers. 00:01:52.007 --> 00:01:55.006 And then I've just somewhat modified it as I've gone along. 00:01:55.006 --> 00:02:00.003 OK, the first is, the purpose of the regulations 00:02:00.003 --> 00:02:03.009 is to implement Title I of the ADA. 00:02:03.009 --> 00:02:06.008 That's what we say in the beginning of the regulations. 00:02:06.008 --> 00:02:11.001 And the reason we do it is because, everything starts with Congress. 00:02:11.001 --> 00:02:13.008 You know, after the regulations got issued people would say, 00:02:13.008 --> 00:02:16.007 the agency did this, the agency did that. It's like, you know what, 00:02:16.007 --> 00:02:21.000 we didn't do anything other than what we are obliged to do 00:02:21.000 --> 00:02:26.000 as a Commission, which is to implement what Congress has passed. 00:02:26.000 --> 00:02:32.000 And Congress passed a bipartisan, hugely bipartisan 00:02:32.001 --> 00:02:38.002 ADA Amendments Act of 2008. So our goal was to carry out 00:02:38.002 --> 00:02:41.006 what Congress was trying to do. And what Congress said, 00:02:41.006 --> 00:02:45.003 all the way through the legislative history of that 2008 Act, 00:02:45.004 --> 00:02:49.002 was that it wanted to stop what had become these minitrials 00:02:49.003 --> 00:02:52.003 on whether a person actually had a disability. 00:02:52.003 --> 00:02:55.008 Did their disability, did their impairment substantially limit them 00:02:55.009 --> 00:02:59.000 enough in some major life activity? And that's all the courts 00:02:59.000 --> 00:03:02.001 were doing instead of getting to the merits of the case. 00:03:02.001 --> 00:03:05.007 So that's what Congress said it wanted to stop. 00:03:05.008 --> 00:03:10.004 And so this is what Congress said in it's purposes act 00:03:10.004 --> 00:03:13.004 of this statute. And we in the agency 00:03:13.004 --> 00:03:15.002 repeated that in the regulations. 00:03:15.003 --> 00:03:19.007 Congress said, the primary object of attention in cases 00:03:19.007 --> 00:03:22.009 brought under the ADA should be whether covered entities 00:03:23.000 --> 00:03:27.000 have complied with their obligations and whether discrimination 00:03:27.000 --> 00:03:30.009 has occurred, not, whether the individual meets the definition 00:03:30.009 --> 00:03:34.003 of disability. It went on to say, and we repeated, 00:03:34.003 --> 00:03:36.009 the question of whether an individual meets the definition 00:03:36.009 --> 00:03:41.004 of disability under this part should not demand extensive analysis. 00:03:41.004 --> 00:03:47.002 So that was the goal, the analysis should not be extensive. 00:03:47.002 --> 00:03:50.002 So that we can quickly get to the merits of the case. 00:03:50.002 --> 00:03:53.009 Were you really discriminated against because you have a disability, 00:03:54.000 --> 00:03:58.006 or because you were a really bad worker, you know. 00:03:58.006 --> 00:04:02.000 Or, did you need an accommodation and you didn't get it? 00:04:02.000 --> 00:04:03.006 Those are the merits of the case. 00:04:03.007 --> 00:04:08.005 Okay, so that was their goal. Now if you look at the definition of 00:04:08.006 --> 00:04:13.007 "disability", under the ADA as amended, the first two prongs 00:04:13.007 --> 00:04:18.007 look exactly like they were written before. Disability means a physical, 00:04:18.007 --> 00:04:22.000 mental impairment that substantially limits one or more 00:04:22.001 --> 00:04:25.007 major life activities of the individual. What we in the regulation 00:04:25.008 --> 00:04:30.004 call the "actual disability prong". Or a record of such an impairment. 00:04:30.004 --> 00:04:35.005 So that's the definition of the first two prongs of the definition of 00:04:35.006 --> 00:04:41.006 disability in the ADA as amended. So one can ask, how did Congress 00:04:41.006 --> 00:04:46.005 achieve its goal? It used the exact same words that were in the 00:04:46.005 --> 00:04:49.005 statute before that had apparently caused all of these problems. 00:04:49.006 --> 00:04:56.000 Now, here's how Congress did it, they added "major bodily functions" 00:04:56.001 --> 00:05:00.005 to the definition of major life activities, and they provided 00:05:00.005 --> 00:05:06.002 a set of rules for how to interpret the term "substantially limits". 00:05:06.002 --> 00:05:12.008 So for the first two prongs of disability, the first two definitions, 00:05:12.008 --> 00:05:18.004 it's the same words, but very, very different outcomes 00:05:18.005 --> 00:05:22.007 in terms of who's covered. And that's what I hope to have you understand 00:05:22.007 --> 00:05:26.006 over the next, you know, ten minutes in terms of the first two prongs. 00:05:26.006 --> 00:05:30.007 So the first two prongs that I'm talking about are the prongs of disability 00:05:30.007 --> 00:05:34.007 where someone has to meet one of those two prongs to get a 00:05:34.007 --> 00:05:38.001 reasonable accommodation. So everything that I'm talking about 00:05:38.002 --> 00:05:40.002 is going to be for folks who are looking for a reasonable accommodation. 00:05:40.002 --> 00:05:44.002 What I hope to explain is how even though it's the exact same words, 00:05:44.002 --> 00:05:50.007 very different outcomes, much easier, more streamlined, quicker analysis. 00:05:50.007 --> 00:05:54.004 So, for all of you folks whose are dealing with disability claims, 00:05:54.004 --> 00:05:59.005 this first threshold issue, do you have a disability, should be much quicker. 00:05:59.005 --> 00:06:03.008 That was Congress's goal, and mostly what we did in the regulations 00:06:03.008 --> 00:06:07.008 is explain how Congress's goal is achieved. 00:06:07.009 --> 00:06:13.003 Okay. So, what we do is we follow the lead of Congress. 00:06:13.003 --> 00:06:17.002 We emphasize the addition of major bodily functions, within major life 00:06:17.002 --> 00:06:23.009 activity. We pull out of the legislative purposes, findings, history, 00:06:24.000 --> 00:06:30.000 nine rules of construction that Congress created for how do you interpret 00:06:30.001 --> 00:06:31.009 the term "substantially limits". 00:06:32.000 --> 00:06:37.007 And then, we explain how these work together, major bodily functions, 00:06:37.008 --> 00:06:42.000 and these rules to create the result that Congress wanted, 00:06:42.000 --> 00:06:46.009 which is this easier, more streamlined analysis, resulting in more people 00:06:47.000 --> 00:06:50.006 being covered. You'll see that I talk about one, plus one, 00:06:50.006 --> 00:06:54.006 plus one equals three, that the adding of major bodily functions 00:06:54.007 --> 00:06:59.008 and two of these rules of construction, the two most important ones add up 00:06:59.008 --> 00:07:04.007 to this more streamlined analysis. That's what the agency did in the regulations. 00:07:04.007 --> 00:07:10.001 We took what Congress said it wanted to do and we just made it more clear. 00:07:10.001 --> 00:07:15.005 Okay. Some things are the same. You have to have a physical or mental 00:07:15.006 --> 00:07:18.006 impairment that substantially limits a major life activity. 00:07:18.006 --> 00:07:21.009 Physical impairment is just the way it was before. It's completely broad, 00:07:21.009 --> 00:07:27.007 it's any physiological disorder or condition. Mental impairment, also, 00:07:27.008 --> 00:07:32.001 same thing, completely broad, any mental or psychological disorder. 00:07:32.001 --> 00:07:39.002 The physical or mental impairment has to substantially limit a major life activity. 00:07:39.003 --> 00:07:43.003 Some thing are also still the same in terms of major life activities. 00:07:43.003 --> 00:07:47.009 Basically what Congress did was take some of the EEOC regulation, 00:07:47.009 --> 00:07:51.003 where we had defined major life activities, put it into the statute, 00:07:51.003 --> 00:07:56.000 the regulations again, just repeat those, added a few others, but these 00:07:56.001 --> 00:08:00.005 are the type of major life activities you should be used to: caring for yourselves, 00:08:00.005 --> 00:08:04.003 seeing, hearing, eating, sleeping, we added performing manual tasks. 00:08:04.003 --> 00:08:09.008 This is the sort of ordinary way of figuring out does an impairment 00:08:09.008 --> 00:08:14.003 substantially limit a major life activity. I do not expect that these 00:08:14.003 --> 00:08:20.005 major life activities are going to be used in many situations. The biggest change 00:08:20.005 --> 00:08:24.001 was adding major bodily functions, we think that's what people 00:08:24.001 --> 00:08:27.009 are going to go to first. Because it going to be a much easier analysis. 00:08:27.009 --> 00:08:32.004 But these life activities still exist, and in some situations, 00:08:32.004 --> 00:08:38.000 people will be using them. But here's the key change major life activities 00:08:38.000 --> 00:08:42.004 included but not limited to the "operation of a major bodily function". 00:08:42.004 --> 00:08:46.007 And basically, this is every function in the body. That was the 00:08:46.007 --> 00:08:50.008 goal of Congress when it added major bodily functions. They made it clear 00:08:50.009 --> 00:08:54.002 by saying "it included but not limited to", and we just repeat this. 00:08:54.002 --> 00:08:58.005 So the immune system, special sense organs, like seeing, hearing, 00:08:58.005 --> 00:09:03.004 normal cell growth, which becomes very important for cancer, digestive, 00:09:03.005 --> 00:09:08.006 genitourinary, bladder, basically any bodily function. So this physical or 00:09:08.006 --> 00:09:13.009 mental impairment has to substantially limit any major bodily function. 00:09:13.009 --> 00:09:20.008 Okay, so therefore the key question is what does it mean to substantially limit? 00:09:20.008 --> 00:09:24.003 Because it's going to now substantially limit any major bodily function. 00:09:24.004 --> 00:09:28.001 These are these nine rules of construction, they're the rules that Congress 00:09:28.002 --> 00:09:33.000 adopted to make it easier to establish coverage, and here's the kicker guys, 00:09:33.000 --> 00:09:39.001 we've all seen how Washington works, none of these rules say what 00:09:39.001 --> 00:09:45.002 "substantially limits" means. Okay, it only tells us what it doesn't mean. 00:09:45.002 --> 00:09:48.009 Because remember, this was a deal between the business community 00:09:48.009 --> 00:09:53.000 and the disability community. And the business community needed to have 00:09:53.000 --> 00:09:57.005 those words again "substantially limits", you know, major life activity. 00:09:57.005 --> 00:10:01.004 And they couldn't get a complete agreement on what it should mean. 00:10:01.005 --> 00:10:06.009 There was agreement on what it shouldn't mean. Which is, it wasn't 00:10:06.009 --> 00:10:12.009 as high standard that the Supreme Court had created. Working off of the 00:10:12.009 --> 00:10:18.002 EEOC regulations, the EEOC regulations in 1991 is the thing that started this 00:10:18.002 --> 00:10:23.006 ball rolling by defining substantially limits as prevents or severely restricts. 00:10:23.007 --> 00:10:27.005 And then courts just ran with it. So basically you'll see the 00:10:27.005 --> 00:10:32.001 rules of construction tell us what substantially limits is not. 00:10:32.001 --> 00:10:36.006 So, for example, it's to be construed broadly, not meant to be 00:10:36.006 --> 00:10:39.006 a demanding standard. Because the Supreme Court had said, 00:10:39.006 --> 00:10:43.008 it's a demanding standard. Does not need to prevent or severely restrict 00:10:43.009 --> 00:10:46.006 a major life activity. Because that has been used by courts 00:10:46.007 --> 00:10:51.005 to kick a lot of people out. The third rule is what I call the aspiration 00:10:51.005 --> 00:10:56.002 as opposed to a rule which is -- you saw this already, primary object 00:10:56.002 --> 00:11:00.005 of attention is whether discrimination occurred, so we shouldn't be having 00:11:00.005 --> 00:11:04.001 extensive analysis at this stage of whether it substantially limits. 00:11:04.001 --> 00:11:10.001 And individualized assessment remains. There was a lot of questions about 00:11:10.001 --> 00:11:12.009 is there still a individualized assessment, you know, from the 00:11:12.009 --> 00:11:16.006 proposed rules? Of course there is. You still to have to have a physical 00:11:16.006 --> 00:11:19.006 or mental impairment, substantially limits a major life activity. 00:11:19.006 --> 00:11:22.003 You still have to do what I call add one, plus, one, plus one, 00:11:22.003 --> 00:11:26.003 it's going to be a lot quicker, and a lot easier, and it will always 00:11:26.003 --> 00:11:31.000 add up to three. And people will be covered. But you still have to 00:11:31.001 --> 00:11:35.008 sort of do that process. Scientific, medical, statistical, evidence 00:11:35.008 --> 00:11:39.004 you'll see is not going to be needed often. I mean, it doesn't mean 00:11:39.004 --> 00:11:43.001 you can't put it forward if a person wants to, but based on the analysis, 00:11:43.002 --> 00:11:46.009 you shouldn't need it. And an impairment has to substantially limit 00:11:46.009 --> 00:11:50.003 only one major life activity, not more than one. Because courts were saying, 00:11:50.003 --> 00:11:53.002 oh, well, you have trouble eating or sleeping, but you can drive, 00:11:53.003 --> 00:11:57.005 so you're not disabled. So here, it's as soon as one major bodily function 00:11:57.005 --> 00:12:02.003 is substantially limited, that's it, you're done. Now you could still say, 00:12:02.003 --> 00:12:06.006 reading all of these, I'm still not quite sure how it's so much easier. 00:12:06.006 --> 00:12:10.006 You've told me what it's not, but I'm not sure how we're getting to this 00:12:10.006 --> 00:12:16.008 quicker, easier analysis. Okay, here are the two critical rules that add, 00:12:16.009 --> 00:12:21.001 when you add it to major bodily functions, these are the two that will 00:12:21.001 --> 00:12:26.004 make that analysis easier for many people, not everyone, but many. 00:12:26.005 --> 00:12:30.005 One, you look at whether an impairment substantially limits that major 00:12:30.006 --> 00:12:35.007 bodily function, or the activity without regard to the ameliorative effect 00:12:35.007 --> 00:12:39.002 of mitigating measures, so you look at the impact without the effect 00:12:39.002 --> 00:12:44.004 of the mitigating measures, and an impairment that is episodic 00:12:44.004 --> 00:12:48.005 or in remission, you look at whether it would substantially limit that 00:12:48.006 --> 00:12:53.007 majorly bodily function when active. So major bodily function, 00:12:53.007 --> 00:12:57.005 plus don't take into account mitigating measures, plus look at it 00:12:57.006 --> 00:13:03.003 in its active state. That's the one, plus one, plus one will equal three 00:13:03.003 --> 00:13:08.003 for lots and lots of impairments. So, on the mitigating measures, 00:13:08.004 --> 00:13:12.004 mitigating measures is basically anything that a person is doing 00:13:12.005 --> 00:13:17.007 to counter the impact of their impairment. So the most common one 00:13:17.007 --> 00:13:21.004 is medication. But there are lots of others, all listed here, 00:13:21.004 --> 00:13:25.008 including this sort of behavioral modifications. A lot of the 00:13:25.008 --> 00:13:30.002 folks with Autism, they'll have a behavioral modification that they'll do, 00:13:30.003 --> 00:13:35.007 in order to counter the effect of their impairment. 00:13:35.007 --> 00:13:38.009 So the point is, you don't take into account anything that mitigates 00:13:39.000 --> 00:13:42.008 the impact, and with regard to medication, which is as I said 00:13:42.008 --> 00:13:48.002 is going to be the main one, the focus is on how the major bodily function 00:13:48.002 --> 00:13:54.000 would be impacted if medication was stopped, or if medication was 00:13:54.001 --> 00:13:56.000 never taken in the first place. 00:13:56.001 --> 00:14:00.005 So for example, someone who has a diagnosis of cancer, the question is, 00:14:00.006 --> 00:14:05.003 absent treatment, absent medication, would it substantially limit 00:14:05.003 --> 00:14:09.006 normal cell growth? The answer, yes. You know, someone who gets the 00:14:09.007 --> 00:14:13.009 diagnosis of HIV infection, it's not a question of in that moment 00:14:14.000 --> 00:14:17.009 how bad is their immune system, it's if they didn't take medication, 00:14:17.009 --> 00:14:22.001 would their immune system be substantially limited? Answer, yes. 00:14:22.001 --> 00:14:28.003 Now there's an exception on mitigating measures, okay. 00:14:28.003 --> 00:14:33.008 Eyeglasses, eyeglasses itself, is the one mitigating measure 00:14:33.008 --> 00:14:38.003 that can be taken into account. Okay. So, for example, 00:14:38.003 --> 00:14:41.005 without my eyeglasses, you just - I see a lot of pretty colors, 00:14:41.006 --> 00:14:47.000 and now I see pretty people. Okay. But, so without the mitigating 00:14:47.000 --> 00:14:51.003 measure, I would be substantially limited in seeing, but, as part of 00:14:51.003 --> 00:14:54.006 the deal, just because you wear eyeglasses, doesn't make you a person 00:14:54.006 --> 00:15:01.000 with a disability under the first or second prong. However, to deal 00:15:01.000 --> 00:15:04.009 with the case which had generated a lot of this bad case law, 00:15:04.009 --> 00:15:09.007 the Sutton sisters, it makes it clear that if a employer for some reason 00:15:09.007 --> 00:15:13.009 has a qualification standard that says, you can only get this job 00:15:14.000 --> 00:15:18.004 if you have uncorrected perfect vision, so we're not hiring Feldblum 00:15:18.004 --> 00:15:22.008 or anyone out there with glasses or contact lenses, the employer has to 00:15:22.008 --> 00:15:26.003 justify that qualification standard as job related and consistent 00:15:26.004 --> 00:15:29.006 with business necessity. And if they can, awesome, and if they can't, 00:15:29.007 --> 00:15:36.001 you got to get rid of that qualification standard. Okay, so that's 00:15:36.002 --> 00:15:39.004 the one plus one, plus one equals three. You add these three elements 00:15:39.004 --> 00:15:44.008 together. Some impairments will virtually always be disabilities. 00:15:44.009 --> 00:15:49.002 And so what we did in the regulations, is after listing these rules 00:15:49.002 --> 00:15:54.009 of construction, we created a section called "predictable assessments". 00:15:54.009 --> 00:16:00.000 It's called the (j)(3)(i), predictable assessments. This is a 00:16:00.000 --> 00:16:02.009 long way of saying, one, plus one, plus one equals three. 00:16:03.000 --> 00:16:06.009 The principles are intended to provide for more generous coverage 00:16:06.009 --> 00:16:11.002 through a framework that is predictable, consistent and workable. 00:16:11.002 --> 00:16:18.006 And, we then said, for example, applying these nine rules of construction, 00:16:18.006 --> 00:16:21.009 the individualized assessment, because you do have to sort of 00:16:21.009 --> 00:16:24.005 do the addition, the individualized assessment of some types of 00:16:24.005 --> 00:16:28.007 impairments will in virtually all cases result in a determination 00:16:28.008 --> 00:16:34.004 of coverage. Why? Given their inherent nature, just given the 00:16:34.004 --> 00:16:38.001 medical facts that if you don't have treatment, you look at something 00:16:38.001 --> 00:16:41.007 in it's active state, okay, these types of impairments will as a 00:16:41.007 --> 00:16:45.008 factual manner virtually always be found to pose a substantial limitation. 00:16:45.009 --> 00:16:49.006 And therefore the assessment should be particularly simple and 00:16:49.006 --> 00:16:53.005 straight forward. This is what I call the "virtually always group". 00:16:53.006 --> 00:16:58.009 It's the (j)(3)(ii) group. Okay. We do not as an agency 00:16:58.009 --> 00:17:03.003 try to come up with the entire DSM IV list of the types of impairments 00:17:03.003 --> 00:17:08.004 that will virtually always end up being covered. But, again, it's 00:17:08.005 --> 00:17:11.008 just conceptually you can see, there are any number of impairments 00:17:11.008 --> 00:17:16.002 that will very easily be covered. And you don't have to get a lot 00:17:16.002 --> 00:17:21.005 of medical analysis. Okay, and then to make it even easier, 00:17:21.005 --> 00:17:27.006 besides the (j)(3)(ii) virtually always group, there's the (j)(3)(iii) 00:17:27.006 --> 00:17:31.005 group. That is, what we did is, we did the analysis for you, 00:17:31.006 --> 00:17:36.001 for a bunch of impairments. We did the one, plus one, plus one 00:17:36.001 --> 00:17:41.001 equals three to say look, applying these, it should easily be concluded 00:17:41.001 --> 00:17:44.004 that the following types of impairments will at a minimum 00:17:44.004 --> 00:17:47.009 substantially limit the major life activities indicated. 00:17:47.009 --> 00:17:52.000 Sort of giving them the way to do it, and then you can see is something 00:17:52.001 --> 00:17:58.003 like something else on this list. So the (j)(3)(iii) list, again, 00:17:58.003 --> 00:18:03.006 it's not a "per se list", because you have to add one, plus one, 00:18:03.007 --> 00:18:07.006 plus one equals three. What we did is we added it for you. 00:18:07.007 --> 00:18:12.006 So it's only if there's some bizarre weird thing, like for example, 00:18:12.006 --> 00:18:16.007 cancer is on this list, the only thing we could figure out in terms 00:18:16.008 --> 00:18:20.008 of negotiations on this reg were to be if you had a type of skin cancer 00:18:20.008 --> 00:18:24.004 that effected only three cells, and even if you didn't take any 00:18:24.005 --> 00:18:28.003 medication ever, it would only stay three cells. If there was 00:18:28.003 --> 00:18:32.000 such a type of cancer, then even though cancer's on the list, 00:18:32.001 --> 00:18:37.004 that type of skin cancer wouldn't be covered. But, I haven't heard 00:18:37.005 --> 00:18:41.008 of that yet. So, here's the thing, so some of them are like very, 00:18:41.008 --> 00:18:46.000 these weren't folk whose had issues before, deaf, blind, 00:18:46.001 --> 00:18:50.002 intellectual disability, some of them did. You know, these folks 00:18:50.002 --> 00:18:54.008 are covered, because it substantially limits this particular bodily function. 00:18:54.008 --> 00:18:58.003 But then this is the list of people who had difficulties. 00:18:58.004 --> 00:19:01.008 So you have Autism, cancer, cerebral palsy, diabetes, epilepsy, 00:19:01.008 --> 00:19:06.004 what we're saying is they substantial limit this particular function. 00:19:06.004 --> 00:19:11.007 And so, again, it doesn't -- diabetes, you can have more mild to 00:19:11.007 --> 00:19:14.006 more severe diabetes, but what we're saying is that when you don't 00:19:14.006 --> 00:19:18.001 take into account medication, and you look at it in it's active state, 00:19:18.002 --> 00:19:22.006 the fact that you got the diagnosis of diabetes means, 00:19:22.006 --> 00:19:27.003 it will substantially limit your endocrine function. OK, so it's not like 00:19:27.003 --> 00:19:31.005 the person ... the person still has to have the medical diagnosis, 00:19:31.005 --> 00:19:36.002 I have diabetes. But then that's it. After that, then you move to 00:19:36.002 --> 00:19:39.005 what's the accommodation you need? Or, thank you for sharing, 00:19:39.006 --> 00:19:42.005 I know you have diabetes, that's not why I fired you, you know. 00:19:42.005 --> 00:19:45.007 That's not why you didn't get to go to this conference. But it's 00:19:45.007 --> 00:19:47.006 sort of like, you don't spend a lot of time "Are you really Black, 00:19:47.007 --> 00:19:50.009 are you really White, are you really Jewish" No, you're like, 00:19:51.000 --> 00:19:54.003 "You didn't not go to this conference because you're Jewish" 00:19:54.004 --> 00:19:59.006 So for a lot of these folks, it's going to be covered, and then 00:19:59.007 --> 00:20:04.004 you move to the merits. Did discrimination happen? Okay. 00:20:04.005 --> 00:20:08.004 So, here are some examples in terms of physical impairments. 00:20:08.005 --> 00:20:12.000 And there will be others that are not listed, but in likelihood 00:20:12.000 --> 00:20:15.002 virtually always, that would fit the same way. And here are 00:20:15.002 --> 00:20:19.008 some examples of mental impairments, so major depressive disorder, 00:20:19.008 --> 00:20:25.009 bipolar, PTSD, OCD. So again, the more significant mental disabilities. 00:20:26.000 --> 00:20:32.009 Last rule of construction, and this one is different from what had 00:20:33.000 --> 00:20:37.007 existed in the EEOC regulations before. An impairment that's temporary, 00:20:37.007 --> 00:20:42.005 right, -- might last less than six months -- can be substantially limiting. 00:20:42.005 --> 00:20:47.008 Now, what happened is, Congress passed the ADA in 1990, said physical or 00:20:47.008 --> 00:20:52.004 mental impairment, substantially limits major life activity, EEOC in 1991 00:20:52.004 --> 00:20:57.002 in their regulations just came up with the rule that to be substantially 00:20:57.002 --> 00:21:00.007 limiting, you had to be of a certain duration, the impairment had to be 00:21:00.008 --> 00:21:04.001 of a certain duration. It was never in the statute, the EEOC just 00:21:04.001 --> 00:21:09.005 came up with it. So, in the ADA Amendments Act, Congress made clear that, 00:21:09.005 --> 00:21:14.005 no, something could be temporary and substantially limiting. If it's a 00:21:14.006 --> 00:21:19.005 broken leg, as a great example, it will heal, but for that period of time, 00:21:19.005 --> 00:21:22.006 it is, you can't get more substantially limiting of the musculoskeletal 00:21:22.007 --> 00:21:28.000 system. Now, it also means that the accommodation that you ask for for that is 00:21:28.001 --> 00:21:32.001 also going to be time limited. OK, remember, all of this stuff is only, 00:21:32.001 --> 00:21:35.002 you're dealing with, if the person's asking for an accommodation. 00:21:35.003 --> 00:21:42.006 So that's rule of construction nine. Up till here is hopefully how to explain 00:21:42.006 --> 00:21:50.002 how Congress achieved the goal of a much quicker, sort of nanosecond analysis of, 00:21:50.002 --> 00:21:56.002 do you have a disability? Because lots of disabilities will in fact, you know, 00:21:56.002 --> 00:21:59.007 once you don't take into account mitigating measures, and look at it in its 00:21:59.007 --> 00:22:05.004 active state, will, you know, be covered. But there are some impairments 00:22:05.005 --> 00:22:09.000 that will be on the spectrum. For example, I have fibromyalgia. 00:22:09.001 --> 00:22:15.003 It hasn't flared up in fifteen years, but for someone else who has fibromyalgia, 00:22:15.004 --> 00:22:20.003 it's absolutely quite limiting. OK, so there are some impairments that 00:22:20.003 --> 00:22:25.003 literally are on the spectrum. Just getting the diagnosis is not enough. 00:22:25.003 --> 00:22:30.008 So there will be some groups, and a lot of the back impairments and stuff like that 00:22:30.008 --> 00:22:38.003 is going to be in this category, they will be on the spectrum. For those 00:22:38.004 --> 00:22:42.008 impairments the final regulations, add back in the condition, manner or duration 00:22:42.009 --> 00:22:48.002 framework. Okay, you can consider, for example, the difficulty, effort or time 00:22:48.002 --> 00:22:52.007 required to perform a major life activity. For these you're more likely to also find 00:22:52.008 --> 00:22:57.009 the old major life activities, walking, lifting, bending, performing manual tasks. 00:22:57.009 --> 00:23:02.009 So the difficulty, the pain, the length of time, all of this stuff will 00:23:02.009 --> 00:23:09.001 come into play. The focus on all of this is going to be how the major life 00:23:09.001 --> 00:23:13.008 activity is limited, not on what outcomes the person can achieve. 00:23:14.000 --> 00:23:16.005 This is particularly important for people with learning disabilities, 00:23:16.009 --> 00:23:20.009 who would often get kicked out of court because they were in medical school, 00:23:20.009 --> 00:23:23.001 so how could you say you were substantially limited in learning? 00:23:23.002 --> 00:23:29.006 But it's how they learned was different. So you don't look at the outcome, 00:23:29.006 --> 00:23:35.008 you look at how you're doing the activity, is that different? So, condition, 00:23:35.008 --> 00:23:39.008 manner, duration is going to be important for some group of folks with impairments. 00:23:39.008 --> 00:23:45.005 But, it's not going to be the norm. Okay. It's not. And that's, we made it 00:23:45.006 --> 00:23:49.002 very clear in the final regulation, you don't have to use condition, manner, 00:23:49.003 --> 00:23:52.007 duration, for some impairments, for example, the ones we already did the 00:23:52.007 --> 00:23:58.000 analysis for you under (j)(3)(iii), but it's out there for those impairments 00:23:58.001 --> 00:24:05.009 that will be on the spectrum. The last thing in terms of prong one, you know, 00:24:05.009 --> 00:24:10.002 there had been a lot of focus on whether you're substantially limited in the 00:24:10.002 --> 00:24:15.006 major life activity of working. A lot of courts would say to someone, well, 00:24:15.006 --> 00:24:18.009 you can't do this, this, but you say you can work, so you're not disabled. 00:24:18.009 --> 00:24:24.006 So the final regulations made it clear that the major life activity of working 00:24:24.007 --> 00:24:29.009 is something that you really only use as a last resort, if you're not limited 00:24:29.009 --> 00:24:32.008 in some other major bodily function. We did that probably by moving it 00:24:32.009 --> 00:24:38.006 out of the regulations and into the appendix. And then second, make clear 00:24:38.006 --> 00:24:41.009 what we had said before, that to be limited in working, you have to be 00:24:41.009 --> 00:24:46.008 limited in more than just one job, okay, can't just be limited in one unique job, 00:24:46.008 --> 00:24:50.000 I don't like my supervisor, therefore I'm limited in working. It has to be a 00:24:50.001 --> 00:24:56.009 class of jobs, a range of jobs. But then gave an example that it can be the 00:24:56.009 --> 00:25:00.007 nature of the work, or more importantly, job related requirements. 00:25:00.007 --> 00:25:04.007 So this is going to be important for essentially more lower income folks 00:25:04.008 --> 00:25:10.000 doing manual labor. So, the most important part is the last one, let's say 00:25:10.000 --> 00:25:12.009 you have someone who can lift 20 pounds, even 30, even 40 pounds, if they 00:25:12.009 --> 00:25:18.003 can't lift 50 pounds. So that person may not be substantially limited in lifting, 00:25:18.004 --> 00:25:22.008 because it may not be easy for most people to lift 50 pounds. They may not even be 00:25:22.009 --> 00:25:27.002 substantially limited in their musculoskeletal system, that might not be easy to show, 00:25:27.004 --> 00:25:32.008 but they are substantially limited in the class of jobs that require heavy lifting. 00:25:33.002 --> 00:25:37.009 So that person, even though that person doesn't look as if he or she is disabled, 00:25:38.004 --> 00:25:43.006 that person is substantially limited in the class of jobs requiring heavy lifting. 00:25:43.006 --> 00:25:47.006 And again, what this is going to be important for is reasonable accommodation. 00:25:47.006 --> 00:25:51.008 All that this gets the person, once you're covered under the first prong is the 00:25:51.008 --> 00:25:57.005 ability to ask for an accommodation to perform the essential functions of the job. 00:25:57.005 --> 00:26:02.006 So if heavy lifting is part of the job, what the person is potentially asking for 00:26:02.008 --> 00:26:07.003 is an accommodation to be able -- some device that will help them lift the 50 pounds, 00:26:07.004 --> 00:26:11.006 or a different way of moving things that lets them achieve the goal of the job 00:26:11.007 --> 00:26:14.002 even with this limitation. 00:26:14.002 --> 00:26:20.006 So, it's an important protection, but for a very focused limited group of individuals. 00:26:20.006 --> 00:26:27.001 Okay, all that was prong one. Prong two is basically just like prong one, except that 00:26:27.001 --> 00:26:34.000 it's the record of an impairment as applied by these principles. The main thing 00:26:34.000 --> 00:26:39.007 is that prong two also, you can get a reasonable accommodation, and both the folks 00:26:39.007 --> 00:26:46.002 who are limited in working, or in a lot of the others, the main new accommodation 00:26:46.002 --> 00:26:53.008 that I think a lot of folks are going to be asking for are changes in schedule and leave. 00:26:53.008 --> 00:26:58.003 And again, this is something that in the federal government, people already had 00:26:58.003 --> 00:27:02.008 access to annual leave and leave issues. So it's going to be much more of a 00:27:02.009 --> 00:27:08.003 new big thing for the private sector that often didn't have job protected sick leave, 00:27:08.003 --> 00:27:17.001 or other time off leave. Okay. But what it does mean, and this brown bag is not on 00:27:17.002 --> 00:27:21.009 reasonable accommodation per se, I'm sure we can have a follow up one. This is 00:27:22.000 --> 00:27:26.008 just about the coverage issue, first. But it will mean that all the issues that 00:27:26.008 --> 00:27:30.008 many of you have been dealing with about leave as a reasonable accommodation in the 00:27:30.009 --> 00:27:34.000 federal government, because you guys have been doing it a lot more than the 00:27:34.001 --> 00:27:39.008 private sector, is just going to be in fact that much more important. 00:27:39.009 --> 00:27:44.002 And that much more important to be doing it correctly. Correctly doesn't always 00:27:44.002 --> 00:27:48.000 mean the person gets all the leave they want. Because there is a undue hardship 00:27:48.000 --> 00:27:53.000 limitation. But, important to know that the accommodation that people under the 00:27:53.001 --> 00:27:57.005 "record of" prong are most likely to be asking for are going to be leave or 00:27:57.006 --> 00:28:04.008 schedule changes, to do follow up. All that is prongs one and two. Okay. 00:28:04.008 --> 00:28:08.003 That's where you're going to be -- folks are going to be looking at if they 00:28:08.003 --> 00:28:13.002 want a reasonable accommodation. The other main change that Congress did, 00:28:13.002 --> 00:28:19.003 and this change was actually changes in the words of the statute, 00:28:19.003 --> 00:28:26.007 was under prong three. And prong three is now an incredibly broad protection. 00:28:26.007 --> 00:28:33.003 It is going to be a real challenge, personally I think it made sense that 00:28:33.003 --> 00:28:36.006 Congress did what it did. I think it is important protection. 00:28:36.007 --> 00:28:45.001 But, it's going to create a really critical management challenge. 00:28:45.002 --> 00:28:49.006 That is, everything that -- and maybe again, we know this already from the 00:28:49.006 --> 00:28:53.007 federal government that, everyone has a race, everyone has a sex. 00:28:53.007 --> 00:28:58.001 I mean, the Office of Federal Operations knows, I spent three months 00:28:58.002 --> 00:29:01.004 reading every single case that came through that mentioned gender. 00:29:01.005 --> 00:29:05.002 I used to say before that white Christian men didn't know they were 00:29:05.003 --> 00:29:08.008 covered under Title VII. Well, I will never say that anymore, 00:29:08.008 --> 00:29:11.006 because in the federal government, certainly in the postal service, 00:29:11.006 --> 00:29:15.002 every white Christian man knows he's covered. And if he hasn't 00:29:15.002 --> 00:29:19.002 gotten to a training, or hasn't gotten ... But the thing that you're 00:29:19.002 --> 00:29:24.007 about to see is that under prong three, any person with an impairment 00:29:24.008 --> 00:29:30.000 is going to be covered if they can allege that the reason they were 00:29:30.000 --> 00:29:32.005 discriminated against is because of the impairment. 00:29:32.005 --> 00:29:37.003 Okay, no substantially limits, no major life activity attached. 00:29:37.003 --> 00:29:42.001 So I would just use this as clarion call to managers, about needing 00:29:42.001 --> 00:29:45.009 to in fact document when people are performing well or not well. 00:29:46.000 --> 00:29:51.009 Because people can allege discrimination now, under this third prong. 00:29:51.009 --> 00:29:55.002 Again, I think it is important protection for when people really are 00:29:55.002 --> 00:29:58.002 discriminated against because of an impairment. Now they don't have to 00:29:58.003 --> 00:30:02.005 jump through any hoops of substantially limits or major life activity. 00:30:02.006 --> 00:30:06.002 So it's important to understand the breadth. Understand the management 00:30:06.003 --> 00:30:11.002 challenge that accompanies it, and then hopefully have it be used to 00:30:11.002 --> 00:30:15.001 protect the people it was designed to protect. So here's what Congress did. 00:30:15.002 --> 00:30:19.005 They kept being regarded as having such an impairment, that's the third prong. 00:30:19.005 --> 00:30:24.001 And then they said, as described in the statute it was section three in the 00:30:24.001 --> 00:30:28.006 regulations it's paragraph (l). And what that means, we brought paragraph (l) 00:30:28.006 --> 00:30:33.001 up into the definition, this means the individual has been subjected to 00:30:33.001 --> 00:30:36.008 an action prohibited by the ADA as amended, because of an actual or 00:30:36.008 --> 00:30:40.009 perceived impairment that is not both transitory and minor. 00:30:40.009 --> 00:30:48.000 That's what the statute says. So, the third prong is going to be used 00:30:48.000 --> 00:30:50.008 when reasonable accommodation is not at issue. Because if you need 00:30:50.008 --> 00:30:53.005 a reasonable accommodation you gotta be under prongs one or two. 00:30:53.005 --> 00:31:00.002 The key thing is action. If the covered entity takes an action prohibited 00:31:00.003 --> 00:31:05.006 by the ADA, on the basis of the impairment, so long as that impairment 00:31:05.006 --> 00:31:10.006 is not both transitory and minor, that action establishes coverage 00:31:10.006 --> 00:31:15.002 under the third prong. So it's a completely circular protection, 00:31:15.003 --> 00:31:20.003 the act of discrimination on the basis of an impairment, transforms 00:31:20.003 --> 00:31:25.004 that impairment into a disability under the third prong. Okay. 00:31:25.004 --> 00:31:29.004 So, even though it's still called the "regarded as" prong, there's 00:31:29.004 --> 00:31:32.007 ordinarily no need to get into the perception. So the whole thing of like, 00:31:32.007 --> 00:31:37.004 did the employer think you were substantially limited, all that is gone, 00:31:37.004 --> 00:31:42.005 has been wiped away by that Congressional change. The only time perception 00:31:42.006 --> 00:31:46.007 is going to even be relevant in the third prong is if the person says, 00:31:46.007 --> 00:31:51.004 I was perceived as having an impairment. Like, someone got discriminated against, 00:31:51.005 --> 00:31:54.003 someone who's gay because they thought she had AIDS, or he had AIDS. 00:31:54.004 --> 00:31:58.006 But generally that's not what's important. What's important is 00:31:58.007 --> 00:32:03.000 can the person show that there was a causation between the act and the impairment. 00:32:03.001 --> 00:32:08.000 The only impairments that are excluded are ones that are both transitory 00:32:08.000 --> 00:32:13.009 and minor. So the only time transitory, six months or less shows up in the statute, 00:32:13.009 --> 00:32:20.002 is now on the third prong, if an impairment is both transitory, and minor, 00:32:20.002 --> 00:32:25.001 then they're not under this broad coverage. So a broken leg 00:32:25.002 --> 00:32:28.008 is obviously still covered because it might be less than six months, 00:32:28.008 --> 00:32:34.003 but it sure as hell isn't minor. Some very minor asthma, that may be 00:32:34.003 --> 00:32:38.006 quite minor but is going to be chronic, that's not excluded. So only impairments 00:32:38.007 --> 00:32:44.003 that are both transitory and minor are excluded. There has to be a 00:32:44.004 --> 00:32:49.004 prohibited action, but, that's just any action that you take in employment. 00:32:49.005 --> 00:32:55.001 Okay, it's the same general list. And, the key thing is there 00:32:55.001 --> 00:33:01.002 has to be causation, okay. The key thing is, the individual has to show 00:33:01.003 --> 00:33:07.001 some evidence that that action was taken because of the impairment. 00:33:07.001 --> 00:33:13.008 And the remedy, again, it's never a reasonable accommodation, so they're saying, 00:33:13.008 --> 00:33:18.002 I didn't get hired, I was fired because of the impairment. 00:33:18.002 --> 00:33:25.003 Just establishing coverage doesn't mean that you've established liability. 00:33:25.004 --> 00:33:29.005 Someone may say yes, I didn't hire you because you were blind, absolutely, 00:33:29.005 --> 00:33:34.009 and you were applying to be a bus driver. So, you were covered under 00:33:35.000 --> 00:33:39.007 the third prong, but, you know, because it establishes -- 00:33:39.007 --> 00:33:41.009 you were also covered under the first prong, because being blind, 00:33:41.009 --> 00:33:46.002 you're substantially limited in seeing. But just because you're covered 00:33:46.002 --> 00:33:52.002 doesn't mean that there is liability. But it does mean that if the person 00:33:52.003 --> 00:33:58.009 took the action based on your impairment, and they can't show it's because 00:33:59.000 --> 00:34:03.009 you were not qualified, you're covered, regardless of this substantially limits 00:34:04.000 --> 00:34:08.006 a major life activity. And one thing, I realize I just took a slide out 00:34:08.006 --> 00:34:13.003 to make it shorter, one thing that was unfortunate that it didn't stay in, 00:34:13.003 --> 00:34:17.004 ah, but we have it here, exclusion for failure to meet a qualification standard, 00:34:17.005 --> 00:34:23.009 that uses the third prong definition of disability. So this is why this is important. 00:34:23.009 --> 00:34:29.003 If you -- if an employer, a business, an agency has a qualification standard like, 00:34:29.003 --> 00:34:34.000 you have to be able to stand for 8 hours, or you have to be able to work under 00:34:34.000 --> 00:34:38.002 these types of temperature conditions, okay. Any qualification standard, 00:34:38.002 --> 00:34:45.001 if that standard would screen out people with a disability and it's the 00:34:45.002 --> 00:34:49.006 third prong definition, so if it would screen out people with any physical 00:34:49.006 --> 00:34:54.007 or mental impairment that's not both transitory and minor, the agency, 00:34:54.008 --> 00:34:59.003 the employer has to justify that qualification standard as job related 00:34:59.004 --> 00:35:02.004 and consistent with business necessity. 00:35:02.005 --> 00:35:08.000 Okay, so for things like back impairments, there are lots of these rules 00:35:08.000 --> 00:35:13.008 that will screen people out. So it creates this initial burden on the agency 00:35:13.008 --> 00:35:19.006 to go through their qualification standards, and just make sure are they job 00:35:19.007 --> 00:35:22.009 related and consistent with business necessity? So when I was talking to folks 00:35:23.000 --> 00:35:28.001 in the hotel industry on this, a good example is for a bartender, right. 00:35:28.001 --> 00:35:32.004 You might have a rule that says you have to stand ? be able to stand for 8 hours. 00:35:32.005 --> 00:35:35.006 They very well might be able to show that's job related and consistent with 00:35:35.007 --> 00:35:41.000 business necessity. So the qualification standard is valid. If someone then 00:35:41.000 --> 00:35:46.000 wants an accommodation, if they want to have a stool, okay, that person 00:35:46.000 --> 00:35:50.009 does have to come in under prongs one or two. Go with prong one. So there, 00:35:50.009 --> 00:35:54.006 the back impairment has to rise to the level that it substantially limits 00:35:54.006 --> 00:35:59.002 the musculoskeletal system, but, again, a much easier standard now. And then, 00:35:59.002 --> 00:36:03.006 they can get that accommodation, as long as they can still be performing the job 00:36:03.006 --> 00:36:09.000 up to par with that accommodation, and that accommodation isn't an undue hardship. 00:36:09.000 --> 00:36:14.004 So this is a little bit of a sleeper, this qualifications standards piece. 00:36:14.004 --> 00:36:18.008 I've been trying to "unsleep" it as I've been out there talking to folks, 00:36:18.008 --> 00:36:22.009 both plaintiffs and employers. This is your moment to go back, 00:36:22.009 --> 00:36:26.005 check your job descriptions, check your qualification standards, 00:36:26.006 --> 00:36:32.004 are you inadvertently screening out people with impairments when it's not 00:36:32.005 --> 00:36:36.004 job related and consistent with business necessity. So do that first, 00:36:36.004 --> 00:36:41.002 and after that, even if it is, someone might in fact be able to ask for 00:36:41.003 --> 00:36:46.006 an accommodation in order to be able to meet the overall purpose of the job. 00:36:46.006 --> 00:36:52.000 The purpose of being a bartender is to serve drinks, not just to stand for 8 hours. 00:36:52.000 --> 00:36:57.000 Okay. The overall regulations take aways, then we will open for questions. 00:36:57.000 --> 00:37:02.004 Congress wanted to stop the focus on coverage of disability by the courts, 00:37:02.004 --> 00:37:06.001 and to get courts to move more quickly to the merits of the case. 00:37:06.001 --> 00:37:15.007 Someone's phone is getting louder. Okay. When reasonable accommodation is at issue, 00:37:15.007 --> 00:37:20.006 prongs one and two will apply. The combination of three changes is going 00:37:20.006 --> 00:37:24.007 to make it easier achieve that coverage and more predictable. 00:37:24.007 --> 00:37:28.002 That's your major bodily functions, don't take into account mitigating measures, 00:37:28.002 --> 00:37:32.006 episodic and in remission impairments looked at in their active states. 00:37:32.006 --> 00:37:35.006 Given those changes, there are a number of impairments that will 00:37:35.007 --> 00:37:40.005 virtually always be disabilities, that's your (j)(3)(ii) category, 00:37:40.005 --> 00:37:45.001 virtually always, and the final regulations provides examples of impairments 00:37:45.001 --> 00:37:50.009 that should easily be concluded to be disabilities, that's your (j)(3)(iii) list. 00:37:50.009 --> 00:37:55.001 For impairments not in the predictable assessments category, not in this 00:37:55.001 --> 00:37:59.006 virtually always, condition, manner, duration will be relevant. The fact that 00:37:59.006 --> 00:38:03.008 "substantially limits" is lower will often be important, I used to write there 00:38:03.008 --> 00:38:07.004 'important but not particularly illuminating,' then I took that off. 00:38:07.004 --> 00:38:11.004 It is a lower standard, even if we haven't told you exactly what it is. 00:38:11.005 --> 00:38:15.007 And people will be covered under working only when they really need to be in 00:38:15.008 --> 00:38:21.003 that category. The impairment only standard of the third prong achieves the goal 00:38:21.003 --> 00:38:25.009 of getting to the merits of the case very quickly. Because, all impairments 00:38:25.009 --> 00:38:29.007 are covered, other than those transitory and minor, and the key issue is 00:38:29.008 --> 00:38:34.001 precisely whether the prohibited employment action happened because of. 00:38:34.002 --> 00:38:39.000 So it just gets to that merits of "because of" right in the beginning of the case. 00:38:39.001 --> 00:38:43.008 But, obviously the breadth of the third prong will require good management skills. 00:38:43.009 --> 00:38:49.002 Because you want to make sure you've got documentation if some adverse action 00:38:49.002 --> 00:38:53.001 has been taken against that person that you've got documentation that it's not 00:38:53.001 --> 00:38:58.007 because of some impairment. Employers, agencies, federal government, 00:38:58.007 --> 00:39:02.002 should all be focusing now on qualification and reasonable accommodation, 00:39:02.002 --> 00:39:06.005 hitting the refresh button on reasonable accommodation procedures, 00:39:06.005 --> 00:39:10.002 and we as an agency need to make sure we're giving you guide guidance, 00:39:10.003 --> 00:39:13.006 especially, as I say, I think with some of the leave and scheduling issues. 00:39:13.007 --> 00:39:20.007 Some links. And here, I know none of you look like that kid anymore. 00:39:20.008 --> 00:39:28.001 But that's the best I could find. And, you get to now ask your questions 00:39:28.002 --> 00:39:32.007 instead of sending them to me at that ... But you can also send it to me 00:39:32.007 --> 00:39:36.006 at that email address. So ... OK, questions? 00:39:36.006 --> 00:39:39.007 NEW SPEAKER: Before I turn it over to the audience, I'm going to take 00:39:39.007 --> 00:39:44.002 the host's prerogative to ask the first question. I've gotten this question 00:39:44.002 --> 00:39:46.005 quite a bit in training, I think it frustrates a lot of people. 00:39:46.005 --> 00:39:51.004 EEOC is seen as doing something of a dance with semantics when we call things 00:39:51.004 --> 00:39:56.001 "virtually always" as opposed to just saying it is a disability. So maybe 00:39:56.002 --> 00:39:58.002 you could talk about why we did that in the regs? 00:39:58.003 --> 00:40:01.005 COMMISSIONER CHAI FELDBLUM: Oh, well, it starts with the first thing -- 00:40:01.005 --> 00:40:07.008 we can only implement what Congress passed. Okay, Congress had before it, 00:40:07.008 --> 00:40:13.004 one of the deals that ended up not working at the end, because both the disability 00:40:13.005 --> 00:40:15.007 and business communities didn't like it for different reasons, 00:40:15.008 --> 00:40:20.004 was the statute from the state of Maine that simply had a whole list of impairments 00:40:20.004 --> 00:40:24.007 that were listed. That's called a per se list. If Congress had done that, 00:40:24.008 --> 00:40:30.009 we would have done the same thing. But Congress didn't. And that's because of 00:40:31.000 --> 00:40:35.009 the way that negotiations happened. So instead, Congress was trying to get to 00:40:35.009 --> 00:40:40.001 that same goal, that same point when they dropped that list of "per se" impairments, 00:40:40.001 --> 00:40:45.000 that's when they added major bodily functions. And literally the point of adding 00:40:45.001 --> 00:40:49.008 major bodily functions, was to try to get all of those impairments that were 00:40:49.009 --> 00:40:54.008 on that list essentially easily covered. So that's what they did. 00:40:54.009 --> 00:40:59.008 We can't do anything about that. All we can do is clarify, this is what Congress 00:40:59.009 --> 00:41:04.009 was trying to do. It was trying to make it very easy to have those folks be covered. 00:41:05.000 --> 00:41:09.009 But it was an important point in the negotiation. And in the negotiation 00:41:09.009 --> 00:41:15.000 inside this building, this is a bipartisan regulation to say there's still 00:41:15.000 --> 00:41:19.009 an individualized assessment. You still have to add one, plus one, plus one equals three. 00:41:20.000 --> 00:41:28.005 So that's not our -- we ? I mean it's funny, someone asked me whether I liked 00:41:28.005 --> 00:41:32.002 doing policy, you know, as a Commissioner? And I was like, well you know, 00:41:32.002 --> 00:41:38.009 when I was outside as a law professor and a legislative advocate, when I was working on 00:41:39.000 --> 00:41:43.001 some of these bills, I had much more latitude. Because it could be, what do 00:41:43.001 --> 00:41:48.004 I think it should be? Now when I'm a Commissioner, I'm a Commissioner, it's, 00:41:48.005 --> 00:41:52.001 what did Congress pass, and how do we implement that? 00:41:52.001 --> 00:41:58.001 NEW SPEAKER: So let's open it up for questions. I didn't say this in the beginning, 00:41:58.002 --> 00:42:02.004 as part of the introduction, but you have the opportunity to ask questions of someone 00:42:02.004 --> 00:42:05.006 who refers to herself as the mother of the ADA. 00:42:05.006 --> 00:42:08.009 COMMISSIONER CHAI FELDBLUM: No. I never do, other people do that. I do say this, 00:42:08.009 --> 00:42:15.003 I say that I don't have kids, I have laws. Like instead of "it's a boy", 00:42:15.003 --> 00:42:19.007 "it's a girl", "it's a law". That is true. I just never think about it, 00:42:19.007 --> 00:42:23.007 I always think about it as a kid as opposed to ? Because when you say you're 00:42:23.008 --> 00:42:28.002 a mother of like... people feel like, no, but I'm the person, I did this. 00:42:28.002 --> 00:42:31.006 As opposed to I figure, it's my kid, and that kid could have lots of other parents. 00:42:31.007 --> 00:42:34.003 NEW SPEAKER: There are lots of other people in the EEOC who say they are the mother. 00:42:34.003 --> 00:42:38.004 But [inaudible] an opportunity to talk to someone who's an expert. So, here's your chance. 00:42:38.004 --> 00:42:42.004 COMMISSIONER CHAI FELDBLUM: On both the original ADA, because I started it in 1988, 00:42:42.004 --> 00:42:46.004 and also on the ADA Amendments Act, I was very active in these negotiations. 00:42:46.005 --> 00:42:47.007 So yes, right over there. 00:42:47.007 --> 00:42:56.006 Question: Hi, my name is Jay. As I read your regulations and try to remember 00:42:56.006 --> 00:43:03.001 some of the language that I've seen, particularly as it relates to prong three, 00:43:03.001 --> 00:43:08.004 and reasonable accommodations, so I'll try to pull it together as how I -- 00:43:08.005 --> 00:43:11.000 COMMISSIONER CHAI FELDBLUM: OK but let me stop you right there, because if 00:43:11.000 --> 00:43:14.007 you're under prong three, you don't get access to reasonable accommodations. 00:43:14.007 --> 00:43:19.001 Question: Well the language speaks to "you're not entitled". So if you're not 00:43:19.001 --> 00:43:25.009 entitled, it kind of suggests that the agency in good faith, or being a good employer 00:43:26.000 --> 00:43:31.000 can still provide reasonable accommodations in the instance that you're a person 00:43:31.000 --> 00:43:36.007 that falls under prong three. So I want some clarity around that. Because it's kind 00:43:36.007 --> 00:43:43.003 of confusing at best when it says you're not entitled, but when ? where otherwise 00:43:43.003 --> 00:43:48.006 it speaks to, well, you are entitled. So, entitlement versus not entitled. 00:43:48.007 --> 00:43:51.002 COMMISSIONER CHAI FELDBLUM: OK, well number one, just because you're, you're 00:43:51.002 --> 00:43:56.009 entitled to reasonable accommodation only if you meet the other aspects of 00:43:56.009 --> 00:43:59.006 reasonable accommodation, that is, you have to, with that accommodation, 00:43:59.006 --> 00:44:03.007 be performing the job up to par, and that accommodation can't be imposing an 00:44:03.008 --> 00:44:10.006 undue hardship. So no one is entitled to just whatever they want. The statute provides 00:44:10.007 --> 00:44:17.007 an obligation on the agency, if someone is under prongs one or two to in fact go through 00:44:17.008 --> 00:44:23.006 this reasonable accommodation process, okay. If -- so if someone wants a 00:44:23.007 --> 00:44:28.006 reasonable accommodation, they have to demonstrate, for statute ? I mean an agency 00:44:28.007 --> 00:44:32.009 can do whatever it wants out of the goodness of its heart. But in terms of the 00:44:32.009 --> 00:44:36.009 statutory obligation, I mean, the best way to think about it is this, 00:44:36.009 --> 00:44:43.006 there is no statutory obligation for an agency to provide an accommodation to 00:44:43.006 --> 00:44:48.005 every person who has a physical or mental impairment that's not transitory and minor. 00:44:48.005 --> 00:44:54.001 There's no obligation, no statutory obligation to provide an accommodation to someone 00:44:54.001 --> 00:45:00.001 who has just any physical or mental impairment. You know that's not transitory and minor. 00:45:00.001 --> 00:45:04.001 There is a statutory obligation to provide a reasonable accommodation 00:45:04.002 --> 00:45:10.000 that enables the person to do the job or to benefit from the goods or privileges of a job, 00:45:10.000 --> 00:45:15.001 so long as that doesn't impose a undue hardship That is the obligation, 00:45:15.001 --> 00:45:23.003 and that obligation now extends to many, many more people than you had thought of before. 00:45:23.004 --> 00:45:29.008 Okay. So, essentially, the first question when someone says I want an accommodation 00:45:29.009 --> 00:45:35.007 should not be, well, let me now spend an hour on whether they're a person with a disability. 00:45:35.008 --> 00:45:40.002 The first question is, well, what are you needing this accommodation more, 00:45:40.003 --> 00:45:45.003 let me know the diagnosis, and that's like two minutes. And then you move to, 00:45:45.003 --> 00:45:49.009 number one, and here are your three most important things about accommodations. 00:45:49.009 --> 00:45:54.006 Just because someone wants something because it would make life easier doesn't 00:45:54.006 --> 00:45:59.005 make that an accommodation. The accommodation has to be "necessary" for the 00:45:59.006 --> 00:46:04.009 person to be able to perform the job, or enjoy the privileges of a job. 00:46:04.009 --> 00:46:10.000 It's not just something that would be nice. They have to make the connection to, 00:46:10.000 --> 00:46:15.004 no, no, no, I need this in order to basically be on a level playing field with everyone else. 00:46:15.005 --> 00:46:22.003 That's number one, that's their obligation to show. And number two, the second is, 00:46:22.004 --> 00:46:28.001 once they get that accommodation, whatever it is, are they now performing up to par? 00:46:28.001 --> 00:46:34.008 Accommodation is not code word for mediocre work, or whatever the standard is 00:46:34.009 --> 00:46:39.007 at which you can fire someone, maybe it's not mediocre, maybe it's lower than that, 00:46:39.007 --> 00:46:45.001 but whatever. An accommodation just allows you to perform at the level that 00:46:45.002 --> 00:46:49.006 everyone else is required to perform. And third, if the accommodation is going to be 00:46:49.006 --> 00:46:55.002 a undue hardship, and that's not just financial hardship, it's logistical, practical, 00:46:55.003 --> 00:47:01.003 operational hardship, okay, if it would be an undue hardship, then that's not required. 00:47:01.004 --> 00:47:07.000 Okay. So reasonable -- that's why I said, you have to hit the refresh button on the 00:47:07.001 --> 00:47:11.004 reasonable accommodation procedures. Lots of people out there in the federal government 00:47:11.004 --> 00:47:15.007 from what I see in terms of reading, who are not getting the accommodations they deserve, 00:47:15.008 --> 00:47:21.000 and they need, to perform because people are not engaging with them correctly. 00:47:21.000 --> 00:47:25.005 And then there are lots of people who think they're entitled to things that they're not. 00:47:25.005 --> 00:47:33.006 So that refresh button goes both ways. Because it doesn't help the people who 00:47:33.007 --> 00:47:38.004 really need and deserve accommodations when other people are demanding accommodations 00:47:38.005 --> 00:47:41.007 that in fact the statute doesn't say they should be getting. 00:47:41.008 --> 00:47:47.006 Question: I have another question. It's me back here. Then I'll come to you. 00:47:47.006 --> 00:47:54.004 Can we talk about the broken leg example. Because this is an example that we, 00:47:54.004 --> 00:47:58.003 previous to the Amendments Act, used regularly as an example of a person 00:47:58.004 --> 00:48:02.007 who does not have a disability. But that is notably absent from our regs, 00:48:02.007 --> 00:48:05.003 or the appendix. So what about the broken leg? 00:48:05.004 --> 00:48:09.002 COMMISSIONER CHAI FELDBLUM: Right. So you do have to know that the lawyers 00:48:09.002 --> 00:48:13.004 in our Office of Legal Counsel blanched when I said to them, "By the way, you know, 00:48:13.004 --> 00:48:17.001 broken legs are covered." They're like, "[gasp] but we always say they're not." 00:48:17.001 --> 00:48:25.006 And I'm like, "Well, stop saying that." So here's the thing. If you've got a broken leg 00:48:25.006 --> 00:48:29.006 and you're not asking for an accommodation, okay, no one should be fired 00:48:29.006 --> 00:48:33.006 because they have a broken leg. Now, the bottom line is, not many people are fired 00:48:33.007 --> 00:48:37.008 because they have broken legs, or for that matter, asthma, or other stuff other than 00:48:37.008 --> 00:48:41.003 the sick leave issue. Which is again, not an issue in the federal government. 00:48:41.004 --> 00:48:46.001 But for the private sector, for low income folks, for folks who have been working 00:48:46.002 --> 00:48:50.006 for employers with less than 50 employees, so they have not been covered by the FMLA, 00:48:50.007 --> 00:48:57.002 this is a game changer for them, in terms of job protection. And then, it's important 00:48:57.002 --> 00:49:01.007 if they have a broken leg, now, so that's now an accommodation. So now, let's say, 00:49:01.007 --> 00:49:08.009 if you need an accommodation because you have a broken leg, you need an accommodation. 00:49:08.009 --> 00:49:12.002 It's like, you need that -- either you need the accommodation of being able to now 00:49:12.002 --> 00:49:16.004 get into your workplace, so let's say it's the type of job where you can do your work 00:49:16.004 --> 00:49:20.004 with a broken leg but you need an accommodation in terms of access, that's what 00:49:20.005 --> 00:49:26.001 the law now says, you are substantially limited in your musculoskeletal system. 00:49:26.001 --> 00:49:32.003 Maybe what you need is a parking spot closer to the building. That's the accommodation. 00:49:32.003 --> 00:49:35.009 That's what's going to enable you to continue working. The whole point of the ADA 00:49:35.009 --> 00:49:41.008 is to allow people with disabilities to work. So for that person with the broken leg, 00:49:41.008 --> 00:49:47.003 they need that parking spot for those four weeks. Now the difference is that, 00:49:47.004 --> 00:49:52.006 once their leg is healed, they gotta give up the parking spot. The accommodation 00:49:52.006 --> 00:49:57.009 lasts only as long as the impairment. That's substantially limiting the 00:49:57.009 --> 00:50:03.009 musculoskeletal system. Again, it's going to be an issue, I think less in the 00:50:04.000 --> 00:50:08.009 federal sector than in the private sector. For this, someone could have a broken leg, 00:50:09.000 --> 00:50:13.002 let's say they needed to go to the doctor, and if some employer didn't want to 00:50:13.002 --> 00:50:18.003 deal with them, they'd say, "You're fired." There's no law against that. Because the 00:50:18.003 --> 00:50:23.007 EEOC had said broken legs were not ... well, [inaudible] Now, they at least get the 00:50:23.007 --> 00:50:28.001 accommodation. And there should not be an undue hardship with letting someone go to 00:50:28.002 --> 00:50:31.009 the doctor, there may be an undue hardship in having the person be out for three weeks. 00:50:31.009 --> 00:50:37.002 So the private sector is now going to be dealing with these issues of accommodation, 00:50:37.003 --> 00:50:43.004 in a way that they hadn't before. But because leave as a reasonable accommodation is 00:50:43.004 --> 00:50:47.007 going to be one of the more complicated issues, something that Commissioner Lipnic, 00:50:47.007 --> 00:50:52.005 my Republican colleague whom I negotiated a lot of this regulation with, and I, 00:50:52.006 --> 00:50:56.004 are both very concerned that the private sector and the public sector understand, 00:50:56.005 --> 00:51:02.000 we had a Commission hearing on leave as a reasonable accommodation. I encourage 00:51:02.000 --> 00:51:04.002 you to go to the website and listen to that. 00:51:04.003 --> 00:51:09.002 Lots of interesting information. And we are working on a document called 00:51:09.002 --> 00:51:13.000 "Leave as a Reasonable Accommodation" so that there's guidance that makes it, 00:51:13.000 --> 00:51:18.002 if not clear, because undue hardship by definition is individualized assessment. 00:51:18.003 --> 00:51:21.004 So it's not like we're going to be able to give bright line rules, but we'll 00:51:21.004 --> 00:51:25.004 be able to give parameters. 00:51:25.005 --> 00:51:32.008 Question: My question is about you said earlier about enjoy the privileges, and ? 00:51:32.009 --> 00:51:34.002 COMMISSIONER CHAI FELDBLUM: Benefits of employment 00:51:34.002 --> 00:51:39.008 Question: ? benefits of employment as well as the first prong of being able to do -- 00:51:39.009 --> 00:51:44.007 being able to meet the requirements of the job. What about intangibles. So, 00:51:44.007 --> 00:51:52.002 there's been case law about someone saying, I need a sink lowered so I don't 00:51:52.002 --> 00:51:53.008 have to go, you know, and then there's ? 00:51:53.009 --> 00:51:55.001 COMMISSIONER CHAI FELDBLUM: Dignitary harm, in this ? 00:51:55.001 --> 00:51:59.009 Question: Yeah, exactly. So dignitary harms, especially considering, you could 00:51:59.009 --> 00:52:01.009 conceive of that as part of a privilege of a job. 00:52:02.000 --> 00:52:05.002 COMMISSIONER CHAI FELDBLUM: Well, this is a good thing why you should come back 00:52:05.003 --> 00:52:08.005 to the brown bag lunch on reasonable accommodation. OK, this was the brown bag lunch 00:52:08.006 --> 00:52:14.000 on ? although no one's eating, other than well, some people are. Anyway, at the next one, 00:52:14.001 --> 00:52:18.004 definitely feel free to bring your food. I think on reasonable accommodation, 00:52:18.004 --> 00:52:24.002 there are going to be lots of issues and questions. And so, since we are at this stage 00:52:24.002 --> 00:52:29.004 inside the Commission, just looking at, you know, we're pulling out that 2002 guidance 00:52:29.005 --> 00:52:34.002 on reasonable accommodation. I would certainly encourage you to take a look at that. 00:52:34.003 --> 00:52:39.004 We're going to be doing a nice little summary of the reasonable accommodation cases 00:52:39.004 --> 00:52:43.007 within the federal sector. I know, I'm sure you know, Ernie Hadley has his great 00:52:43.008 --> 00:52:49.005 wonderful treatise, so we're looking at his chapter 14, which is ADA and 00:52:49.005 --> 00:52:55.000 reasonable accommodation to see what we can pull out. So until we end up doing that, 00:52:55.000 --> 00:52:58.001 and having that little negotiation inside the Commission, I don't want to answer 00:52:58.001 --> 00:53:03.009 specific questions, but I'm very happy to get questions. You should still use this 00:53:04.000 --> 00:53:10.005 to email me your tough reasonable accommodation questions. Because I would like to be 00:53:10.005 --> 00:53:14.003 having them as we are trying to revise this guidance. 00:53:14.003 --> 00:53:31.001 Question: So, like before, I would get cases of women who are pregnant and that 00:53:31.001 --> 00:53:40.009 causes a certain medical condition. And I would have to maybe turn them away 00:53:41.000 --> 00:53:43.009 because it was temporary. 00:53:44.000 --> 00:53:45.001 COMMISSIONER CHAI FELDBLUM: Right. 00:53:45.001 --> 00:53:51.006 Question: Am I to assume that now just like the broken leg, it would be different? 00:53:51.006 --> 00:53:55.008 COMMISSIONER CHAI FELDBLUM: So here's the thing about pregnancy. Remember I said 00:53:55.008 --> 00:54:00.008 some things are still the same. It has to be a physiological, a physical impairment. 00:54:00.008 --> 00:54:05.000 And so what we have said in the regulations, and we have repeated it in this one, 00:54:05.000 --> 00:54:11.006 is that pregnancy itself, a "normal pregnancy" itself is not a physical impairment. 00:54:11.006 --> 00:54:18.000 So, someone who, because of a normal pregnancy ultimately can't lift a certain 00:54:18.000 --> 00:54:22.009 amount, that person is not going to be able to ask for accommodation, because it's 00:54:22.009 --> 00:54:30.002 not the impairment. However, if the pregnancy has given rise to some medical impairment, 00:54:30.002 --> 00:54:35.007 and often that is the case, then that person can be covered, absolutely. The fact that 00:54:35.007 --> 00:54:41.008 it's temporary is not, is not a, you know, you're out and done. Instead it's, 00:54:41.008 --> 00:54:46.000 is that an impairment -- what major bodily function is that impairment 00:54:46.000 --> 00:54:49.007 substantially limiting? Again, for a lot of folks it might be the lifting, 00:54:49.007 --> 00:54:53.006 and what they get is, at least some accommodation. It might be they don't have to do 00:54:53.006 --> 00:54:56.006 some part of their job for that period of time. 00:54:56.007 --> 00:55:02.008 Yeah, follow up. Wait for the mic. 00:55:02.008 --> 00:55:10.002 Question: What about -- and I know I'm being specific, but like a female who has to be 00:55:10.003 --> 00:55:21.009 on bed rest. Could they ask for work at home if they just can't -- per doctor's orders 00:55:21.009 --> 00:55:27.000 be at work, but could still do the work? 00:55:27.000 --> 00:55:30.007 COMMISSIONER CHAI FELDBLUM: Right . So I need to -- that then becomes the medical question. 00:55:30.008 --> 00:55:35.006 You know. Most people who are pregnant don't have to be on bed rest all the way to the end. 00:55:35.007 --> 00:55:40.005 So it feels to me that there should be a medical reason. But see, that's where you 00:55:40.006 --> 00:55:45.003 would have to have at least enough of that medical information to bring it out of 00:55:45.003 --> 00:55:52.001 normal pregnancy and into some impairment world. But once you do, then, yes, I think 00:55:52.001 --> 00:56:01.004 you can ask for that. But it's -- you know, I'm sure that's -- so, I just want the say 00:56:01.005 --> 00:56:06.002 that's the framework. Whether in fact that's going to be held to substantially limiting? 00:56:06.002 --> 00:56:09.009 I don't know. I think that's going to be one of the tougher situations. 00:56:10.000 --> 00:56:16.002 Question: Just to follow up on that. This was a scenario that happened a few years ago 00:56:16.002 --> 00:56:25.000 at our agency. Can you hear me? If you have a person who's pregnant, who hasn't asked for 00:56:25.000 --> 00:56:32.001 an accommodation, but let's say it's getting to be far along, there are males in the office 00:56:32.001 --> 00:56:38.008 who notice part of her job is lifting boxes, and things like that, they without consulting 00:56:38.008 --> 00:56:45.005 anyone offer their help, does that then put her under prong three if she were to say, 00:56:45.005 --> 00:56:48.008 now I want an accommodation because I'm pregnant? 00:56:48.009 --> 00:56:50.004 COMMISSIONER CHAI FELDBLUM: No, no, no, not at all. 00:56:50.004 --> 00:56:55.002 NEW SPEAKER: We were cautioned about that a few years ago, that you shouldn't assume someone ? 00:56:55.003 --> 00:56:59.008 COMMISSIONER CHAI FELDBLUM: Well, what's true in this has nothing to do with the law this, 00:56:59.009 --> 00:57:03.005 is just generally, men should do this before they start doing things for women, 00:57:03.005 --> 00:57:09.002 they should ask, "Do you want us to do that?" That's a gender issue. 00:57:09.003 --> 00:57:16.003 But, the fact that you've now -- I mean, I think that's a great idea for the guys 00:57:16.003 --> 00:57:23.005 in the workplace to say, do you want me to lift? Because now the -- people used to say, 00:57:23.005 --> 00:57:28.007 don't ask about if they have this, because then they'll be covered under the third prong, 00:57:28.007 --> 00:57:33.008 don't do this because... that was all a concern when it was all about perception, 00:57:33.008 --> 00:57:39.004 how are you perceiving the person. Perception is gone. Okay, what matters is, 00:57:39.004 --> 00:57:45.007 did you take an adverse employment action? That's all. So, because the thing is, 00:57:45.008 --> 00:57:51.001 you can't engage with someone to make sure they can be doing the job well if you don't 00:57:51.002 --> 00:57:57.001 talk to them about, hey, you're not doing the job well. Is there something you want to 00:57:57.001 --> 00:58:01.002 tell me? Okay. And people were not doing that, because, oh, because then afterwards 00:58:01.002 --> 00:58:08.003 she'll say -- you can now do that. Again, you can't do medical exams. You can't say, 00:58:08.004 --> 00:58:14.002 fill out this medical questionnaire, you can't do probing medical questions, unless 00:58:14.002 --> 00:58:23.004 they're job related. But you can say, you are not performing up to par. You need to be, 00:58:23.004 --> 00:58:28.000 over the next three weeks. And then what you want is to have a good reasonable 00:58:28.000 --> 00:58:32.005 accommodation process set up in your agency so you say, if the reason you're having 00:58:32.005 --> 00:58:36.009 trouble is because of an impairment, you don't need to talk to me, your direct 00:58:37.000 --> 00:58:41.002 superviser you can call this person, your reasonable accommodation manager. 00:58:41.002 --> 00:58:46.005 Go talk to them. That person will have to come back around to me, because you might 00:58:46.005 --> 00:58:50.001 work out some modification, I'm going to need to say whether that's an undue hardship. 00:58:50.002 --> 00:58:56.004 But you don't need to tell me all the details of the medical situation. You just need 00:58:56.005 --> 00:59:00.007 to tell that to someone else, and then work out a possible accommodation, that person 00:59:00.007 --> 00:59:05.009 will come back and talk with me. You see, supervisors do not have to be involved 00:59:06.000 --> 00:59:11.007 in the medical details anymore. That's what you say. Lots of folks are covered. 00:59:11.007 --> 00:59:15.007 If someone says they have diabetes, MS, don't say, oh, my aunt had MS she had 00:59:15.007 --> 00:59:20.000 no problem. You know what I mean. ?Cause a lot of them do that, and a lot of them 00:59:20.000 --> 00:59:26.003 try to be their own medical doctors. No. A, if someone comes to you with a medical issue, 00:59:26.003 --> 00:59:29.005 and they want something, you send them over to the reasonable accommodation person. 00:59:29.006 --> 00:59:33.009 B, if someone doesn't come to you but they're just not performing well, 00:59:34.000 --> 00:59:39.006 you go to them and say, you're not performing well. And if it's because of a 00:59:39.006 --> 00:59:44.008 medical situation, here's who you talk to. And that doesn't violate the law, 00:59:44.008 --> 00:59:49.008 it doesn't create coverage under the third prong. Okay, it just sets the things in motion 00:59:49.008 --> 00:59:51.005 the way it should happen. 00:59:51.005 --> 00:59:56.007 OK, so we'll do that one and then you'll get the mic for the next. Yes. 00:59:56.007 --> 01:00:01.007 Question: Recognizing that the law stipulates that if you have history of a disability 01:00:01.007 --> 01:00:07.008 or some type of medical issues, what impact if any do you foresee the advances in technology 01:00:07.008 --> 01:00:13.001 having an impact on the definition of disability or do you see that at all? 01:00:13.001 --> 01:00:18.005 COMMISSIONER CHAI FELDBLUM: Well, I think we will find lots and lots of people who have 01:00:18.006 --> 01:00:25.006 recovered from, right, or been helped in terms of their impairment. But I think a lot of 01:00:25.006 --> 01:00:30.006 these folks will still end up being considered under prong one, let's say because it might just 01:00:30.006 --> 01:00:35.009 be in remission, right. Remember, impairments that are in remission are considered as if they're 01:00:36.000 --> 01:00:42.002 in their active state. So I think they'll be -- that will continue to have broad coverage. 01:00:42.003 --> 01:00:48.007 Again, once someone has recovered completely, usually there's not an accommodation that they need, 01:00:48.008 --> 01:00:53.009 other than sometimes an accommodation of a schedule change or, you know, doctor's visits. 01:00:54.000 --> 01:00:59.003 But I do actually think that in terms of technology, we're going to be having lots and 01:00:59.003 --> 01:01:05.006 lots of people with impairments in the workplace where they should be. And then the goal 01:01:05.007 --> 01:01:11.000 about this is not to have myths and stereotypes stop those people from being able to work 01:01:11.000 --> 01:01:12.004 and get a paycheck. 01:01:12.005 --> 01:01:16.000 Question: One the reasons I ask the question is because with the advances with let's say 01:01:16.000 --> 01:01:21.006 prosthetics, recognizing that, if you take your prosthetic off, you still have the disability, 01:01:21.007 --> 01:01:25.008 but in some arenas, this is probably a question under reasonable accommodations, 01:01:25.009 --> 01:01:31.006 with the advances that they're making, in some ways they're saying, you can do better walking 01:01:31.006 --> 01:01:35.004 than a person that has their legs. You know, or has their arms. 01:01:35.005 --> 01:01:38.004 COMMISSIONER CHAI FELDBLUM: Well, that's the importance of the rule that says you don't 01:01:38.004 --> 01:01:42.004 take into account mitigating measures, I mean that's the key thing. So you just look at it 01:01:42.004 --> 01:01:47.009 without that technology, how you know, are they disabled? And then -- but they may not need 01:01:47.009 --> 01:01:51.008 an accommodation, or they might. But yes, that's the importance of not taking into account 01:01:51.008 --> 01:01:53.000 mitigating measures. 01:01:53.000 --> 01:02:00.003 Question: I ended up having two questions, one is a follow up to, in regards to managers, 01:02:00.003 --> 01:02:06.002 basically you stated as a given that there will be a reasonable accommodation person 01:02:06.002 --> 01:02:11.008 other than the supervisor. I'm at a very, very, large agency that still has in their policy 01:02:11.009 --> 01:02:15.008 that first line supervisors are the decision makers for accommodation decisions. 01:02:15.009 --> 01:02:21.004 So, I guess it's more of a rhetorical, when EEOC gets to the point of looking at the guidance 01:02:21.006 --> 01:02:27.009 and perhaps revising it, could it possibly be included in that guidance that this first 01:02:28.000 --> 01:02:32.002 line supervisor as a decision maker policy is no longer good practice? 01:02:32.002 --> 01:02:35.001 COMMISSIONER CHAI FELDBLUM: Yeah, and so here's what I would say about that. 01:02:35.001 --> 01:02:40.005 I definitely think that our guidance needs to be more clear about what it is that 01:02:40.005 --> 01:02:46.006 federal agencies need to have in place. I don't think the answer -- the answer doesn't 01:02:46.007 --> 01:02:52.006 exclude the supervisor, because that's necessary for the undue hardship analysis, it's just, 01:02:52.007 --> 01:02:58.004 it can't be that the supervisor gets to decide. It's just, that is not a correct 01:02:58.005 --> 01:03:03.005 application of the law. Because A, the supervisor doesn't need to know all of that background 01:03:03.006 --> 01:03:10.001 medical stuff. You know, and, I mean it's not that the law prohibits it, you know, 01:03:10.002 --> 01:03:15.007 but for the federal government, which is bigger, it has to be that you go to someone else, 01:03:15.007 --> 01:03:22.008 you basically have someone who knows about accommodations, who's then basically your person 01:03:22.008 --> 01:03:29.000 who's talking with the supervisor. It's like our Kendra here. Every agency should have a Kendra, 01:03:29.001 --> 01:03:35.005 maybe we should end on that title. This is Kendra from EEOC's reasonable accommodation manager, 01:03:35.005 --> 01:03:41.007 and disability program manager, and other such titles. And I did just see, we're 10 minutes over. 01:03:41.007 --> 01:03:45.002 So, do we have one last question. 01:03:45.003 --> 01:03:49.008 NEW SPEAKER: Actually, if you're able to, we can go to 1:30, it's listed as 1:30. 01:03:49.008 --> 01:03:55.004 COMMISSIONER CHAI FELDBLUM: Oh, okay, then I'm okay, they'll live without me. Go ahead. 01:03:55.005 --> 01:03:58.009 NEW SPEAKER: My second question, actually, going back to your sleeper hit of the 01:03:58.009 --> 01:04:04.008 qualification standards, in terms of determining whether or not qualification standards are 01:04:04.009 --> 01:04:10.004 inherently discriminatory, do you look at the standards for the job series or the job 01:04:10.004 --> 01:04:15.003 as actually performed by the individual. For example, some of our mission critical occupations, 01:04:15.004 --> 01:04:22.007 the series has strict medical requirements across the board, but that series works in, 01:04:22.007 --> 01:04:27.004 I'll give it away, tower environments or in regional radar situations, which, they don't 01:04:27.005 --> 01:04:30.008 actually need to look out the windows, they're going to be staring only at computer screens. 01:04:30.009 --> 01:04:33.005 COMMISSIONER CHAI FELDBLUM: Right. No, no, no, it has to be, the qualification standard 01:04:33.005 --> 01:04:38.003 has to be to the job that you are then applying for. So if you have a qualification standard 01:04:38.003 --> 01:04:44.002 broadly, it might be job related and consistent with business necessity for some, in which case 01:04:44.002 --> 01:04:47.006 they'll be valid, but not for others. And it has to go to the job that the person is 01:04:47.006 --> 01:04:49.006 trying to get or perform. 01:04:49.007 --> 01:04:53.007 NEW SPEAKER: Can I just follow up on your first question, and offer a piece of guidance 01:04:53.008 --> 01:04:58.004 to folks who experience this issue. Your agency is not the only agency that still leaves 01:04:58.004 --> 01:05:02.006 the decision in the hand of their first line managers without the support of a disability 01:05:02.007 --> 01:05:07.002 program manager to help them make that decision. Until you all actually revamp your policies 01:05:07.002 --> 01:05:11.007 which we obviously encourage you to do, you can take a look at our reasonable accommodation policy. 01:05:11.008 --> 01:05:16.002 And we tell agencies regularly, go to our website, look at our policies, you will see 01:05:16.002 --> 01:05:19.007 we do not leave it in the hands of our first line supervisors, despite the fact that 01:05:19.008 --> 01:05:23.005 most of them know this area very well. So you can take that as a message that maybe 01:05:23.006 --> 01:05:25.009 that's not a [inaudible] 01:05:26.000 --> 01:05:33.000 NEW SPEAKER: Our guidance for the executive order, which is obviously written many, 01:05:33.001 --> 01:05:37.009 many, years ago says that it should be the -- the decision should be left 01:05:38.000 --> 01:05:42.002 on the lowest level. So first line supervisors. 01:05:42.003 --> 01:05:45.003 COMMISSIONER CHAI FELDBLUM: For which executive order? 01:05:45.004 --> 01:05:48.000 NEW SPEAKER: 13164 on providing reasonable accommodations, and writing procedures. 01:05:48.001 --> 01:05:53.003 COMMISSIONER CHAI FELDBLUM: But I think we can work with that, what I was saying before, 01:05:53.003 --> 01:05:58.005 we shouldn't be excluding -- what you don't want is someone a thousand miles away saying, 01:05:58.005 --> 01:06:02.004 well, you couldn't possibly do that, that would be an undue hardship, when they have no 01:06:02.004 --> 01:06:06.008 clue about how things are working on the ground level. So there's got to be a 01:06:06.009 --> 01:06:13.007 synergistic relationship between the supervisor who has to deal with, now fitting the 01:06:13.007 --> 01:06:19.004 accommodation into getting the work done, and someone outside of that person who can say, 01:06:19.005 --> 01:06:25.002 I'm sorry that that's a little bit more of headache; a headache is not a undue hardship. 01:06:25.002 --> 01:06:29.009 So it's got to be a synergy of those two places working together. 01:06:30.000 --> 01:06:37.005 Question: I had a question, that goes back to kind of a mixture of the broken leg and the -- 01:06:37.006 --> 01:06:43.004 which would be under, the way we talked about it, under reasonable accommodations, 01:06:43.004 --> 01:06:47.002 and then the transitory minor, which is not for reasonable accommodation, but they're 01:06:47.002 --> 01:06:50.009 very similar, and there's a lot of confusion on that. So my first question is, 01:06:50.009 --> 01:06:56.006 when I train I get questions on, well what does "minor" mean, because there's no definition, 01:06:56.006 --> 01:07:01.000 there's a definition of transitory, but they leave minor alone. Then the connection or 01:07:01.000 --> 01:07:05.006 lack thereof when you're looking at, say, for that reasonable accommodation with the broken leg, 01:07:05.006 --> 01:07:11.005 where there's this connection of, well it maybe severe, which is the opposite of minor, 01:07:11.005 --> 01:07:15.003 and how you're supposed to look at that. 01:07:15.004 --> 01:07:19.009 COMMISSIONER CHAI FELDBLUM: Yeah, so I think the first thing I would say is, when you're 01:07:19.009 --> 01:07:25.001 thinking about reasonable accommodation, the words "transitory and minor" should never 01:07:25.002 --> 01:07:32.008 pass your lips. Okay. Just like when you are looking at something that's not asking for 01:07:32.008 --> 01:07:36.007 a reasonable accommodation, the words "substantially limits" and "major life activities" 01:07:36.008 --> 01:07:41.002 should never pass your lips. These are two completely separate worlds. 01:07:41.003 --> 01:07:47.008 I mean, it had to be in the negotiations that once physical or mental -- 01:07:47.008 --> 01:07:53.003 once third prong became an impairment only standard, any mental or physical impairment 01:07:53.003 --> 01:07:59.008 so long as you could show a causation, you could bring a claim. So long as -- 01:07:59.008 --> 01:08:05.002 once that deal was made, that that act transformed an impairment into a disability, 01:08:05.002 --> 01:08:12.007 the business community required that the most minor, and we were talking cuts 01:08:12.008 --> 01:08:19.003 on your finger, you know, a scratch on your face, okay, if something was both 01:08:19.004 --> 01:08:25.004 minor and temporary, and less than six months, then you weren't going to be allowed 01:08:25.005 --> 01:08:31.006 to use it to transform it into a disability. So, in my slide I just say minor 01:08:31.006 --> 01:08:36.000 means "minor". It's plain meaning of the word, look up minor in the dictionary, 01:08:36.000 --> 01:08:42.009 it's something that is trivial. It's a cut on your face, it's, you know, 01:08:42.009 --> 01:08:50.001 it's something really small and trivial. So something small and trivial, 01:08:50.001 --> 01:08:56.008 and transitory, okay, but even like a cold, I mean a cold doesn't feel so 01:08:56.008 --> 01:09:01.008 minor when you have it, but a cold would be also covered under minor, you know. 01:09:01.008 --> 01:09:09.001 So, minor and less than six months, that's what you're dealing with if someone 01:09:09.001 --> 01:09:13.003 is not asking for an accommodation, and they're just coming forward saying, 01:09:13.003 --> 01:09:18.000 I didn't get that promotion because I have asthma. Okay. And look, 01:09:18.000 --> 01:09:25.001 the most minor of asthma, let's say. But, I shouldn't say so minor, asthma, 01:09:25.001 --> 01:09:29.009 so it's not minor, and chronic. So that's when you would be dealing with 01:09:29.009 --> 01:09:33.009 transitory minor, I don't think you'll be dealing with transitory and minor a lot, 01:09:34.000 --> 01:09:39.007 personally. Because I think the bigger issues are the accommodation issues. 01:09:39.007 --> 01:09:43.009 So in accommodation, the word "transitory and minor" just never appear. 01:09:44.000 --> 01:09:51.001 Instead the question is, what's the diagnosis, and is that diagnosis one that, 01:09:51.002 --> 01:09:54.006 in its active state without mitigating measures, looks like some of these 01:09:54.006 --> 01:09:57.007 other ones that we have said are covered. 01:09:57.008 --> 01:09:59.009 Is that helpful? 01:09:59.009 --> 01:10:01.003 Question: Yeah. 01:10:01.003 --> 01:10:04.009 COMMISSIONER CHAI FELDBLUM: Follow up on what you think you would get as a follow up? 01:10:04.009 --> 01:10:08.001 Question: Well, more on the, even though you're not supposed to connect 01:10:08.002 --> 01:10:12.002 the transitory and minor to the substantial limitation, just going back 01:10:12.003 --> 01:10:18.005 to the perhaps shock in this building that a broken leg would no longer be something 01:10:18.006 --> 01:10:22.008 that would be considered, we use the word "minor" before, now we don't use that word. 01:10:22.008 --> 01:10:25.007 But it's severe enough that it would be substantially limiting, even if it was 01:10:25.008 --> 01:10:30.008 for a very short time, and just how, that there's no -- there was a decision, 01:10:30.009 --> 01:10:34.006 a obvious decision in both of those cases not to define minor, and not to define 01:10:34.007 --> 01:10:38.004 exactly what that substantial limitation is going to be, other than to give examples. 01:10:38.005 --> 01:10:42.006 COMMISSIONER CHAI FELDBLUM: Right. Right. And I guess, part of it is, 01:10:42.006 --> 01:10:49.007 this is a sea shift, that's why there needs to be training on the coverage piece. 01:10:49.008 --> 01:10:54.001 Even though ultimately, I think in a day to day activity, the coverage actually 01:10:54.001 --> 01:10:59.002 should not take that long to decide. And that's why we move to the other. 01:10:59.002 --> 01:11:03.004 Like someone, again on this hotel thing, and someone was saying, well, 01:11:03.005 --> 01:11:07.004 what about someone who has an impairment, they give off this really bad body odor, 01:11:07.004 --> 01:11:14.003 and they wanted to be the receptionist desk person. And it was interesting 01:11:14.003 --> 01:11:17.009 because even though -- I was doing a webinar with this management lawyer, and 01:11:17.009 --> 01:11:21.002 Commissioner Lipnic, even though the management lawyer had before just said, 01:11:21.002 --> 01:11:27.009 go to the merits, go to the merits, when she got that question from the phone, 01:11:28.000 --> 01:11:31.009 she like went to her default of, well, I guess the first question is, 01:11:32.000 --> 01:11:37.001 is the person covered? You know, then I said, no. Don't have that be 01:11:37.002 --> 01:11:41.001 your first question. Okay. Your first question would be okay, we're going to assume 01:11:41.001 --> 01:11:45.001 for the moment that you've got some physical impairment that might in fact 01:11:45.002 --> 01:11:49.009 rise to the level, you've got a disability. Now let's look at the job. 01:11:50.000 --> 01:11:55.007 Are you stocking something in the back in which case, big deal that you've got 01:11:55.007 --> 01:12:00.004 the body odor, or are you a receptionist clerk, where that would be a big problem? 01:12:00.004 --> 01:12:05.007 Just move to the merits, move to the merits. There's one thing you can tell your folks, 01:12:05.007 --> 01:12:10.007 and for you guys to do is, don't worry so much that a broken leg is covered. 01:12:10.008 --> 01:12:17.008 Take a deep breath, be zen, it's covered. Now let's move to, what are they 01:12:17.008 --> 01:12:24.004 asking for? Can you do it? And is it a undue hardship? And that's really the best 01:12:24.004 --> 01:12:29.009 -- just, zen, zen. We need to get a microphone so to this person, and then 01:12:30.000 --> 01:12:31.009 we're going to wrap up. 01:12:31.009 --> 01:12:39.009 Question: I don't really want to get into the weeds, I know we're sort of 01:12:40.000 --> 01:12:43.003 having that problem a little bit. But your last example made me think of 01:12:43.004 --> 01:12:47.001 this question where we're talking about qualification standards, and being really clear 01:12:47.001 --> 01:12:51.007 on what your qualification standards are. But when you have something like your example, 01:12:51.008 --> 01:12:56.003 I don't think most people put needs to smell nice in their qualification standards. 01:12:56.004 --> 01:13:01.006 So how would you go about making sure that your qualification standards cover you 01:13:01.007 --> 01:13:07.006 in a way that is complete, or are certain things just sort of known or unknown. 01:13:07.007 --> 01:13:08.007 How would you do that? 01:13:08.007 --> 01:13:12.006 COMMISSIONER CHAI FELDBLUM: I would not spend a lot of energy trying to create 01:13:12.007 --> 01:13:17.005 qualification standards now. What I would do is go back and look at the ones you've got 01:13:17.006 --> 01:13:23.008 to make sure make sense. But beyond that, because it is such a individualized assessment, 01:13:23.008 --> 01:13:29.005 the most important thing is that for every job in the agency, a supervisor 01:13:29.005 --> 01:13:33.009 should be able to say, and it can be written in a job description or not, 01:13:34.000 --> 01:13:41.003 it doesn't have to be, they should be able to say, this job exists to achieve X. 01:13:41.003 --> 01:13:46.004 Not how you did it. Just be able to say, this is the purpose of this job. 01:13:46.005 --> 01:13:49.002 That's the most important thing. 01:13:49.003 --> 01:13:53.008 Because then, as different people with impairments come, they might need 01:13:53.008 --> 01:13:57.003 an accommodation, so long as you have that as your compass, what it is that we're 01:13:57.004 --> 01:14:00.006 trying to achieve, as opposed to how have we done it? What have we said 01:14:00.007 --> 01:14:06.007 the standards are? You have what it's designed to achieve, that's going to be 01:14:06.007 --> 01:14:11.001 your best way to figure out whether you can make an accommodation. 01:14:11.002 --> 01:14:15.005 So I'll end with this example, also I just happened to have done the hotel one recently. 01:14:15.005 --> 01:14:20.005 Let's say you have people who are moving chairs into the banquet hall. 01:14:20.005 --> 01:14:24.001 And the way you've always done it is, you've always had people 01:14:24.001 --> 01:14:29.007 take five chairs as a time. Someone has a condition, they can't do five chairs. 01:14:29.007 --> 01:14:35.009 But they can actually put 25 chairs on a dolly and push them in. 01:14:35.009 --> 01:14:41.009 The job should not be described as being able to lift the equivalent of five chairs. 01:14:41.009 --> 01:14:46.004 That's like a qualification standard. No, it's, what's the purpose of the job? 01:14:46.004 --> 01:14:51.001 The purpose of the job is to get a banquet room set up in X amount of time. 01:14:51.002 --> 01:14:56.004 Which requires transporting X number of chairs to that room in X amount of time. 01:14:56.005 --> 01:15:00.000 Okay, that's what you want to do. What are we trying to achieve. 01:15:00.000 --> 01:15:03.008 And then you'll see if there is an accommodation that will let the person do that, 01:15:03.009 --> 01:15:09.001 even if it's not the way it's always been done. Eyes on the prize of, 01:15:09.001 --> 01:15:15.000 what are we trying to achieve in the job? And that will get to what I was saying before, 01:15:15.000 --> 01:15:19.008 the whole point of the ADA is to let people who happen to have physical and 01:15:19.008 --> 01:15:24.006 mental impairments, but who can absolutely do the job get a chance at doing the job. 01:15:24.006 --> 01:15:30.003 That's the point of it. So we can all get a paycheck and go shopping. No. Okay. 01:15:30.003 --> 01:15:34.001 Thank you so much guys. Thank you for your work. And ?? 01:15:34.001 --> 01:15:36.008 ...APPLAUSE... 01:15:36.009 --> 01:15:38.007 NEW SPEAKER: Thank you very much for sharing your knowledge with us. 01:15:38.007 --> 01:15:41.008 Just a few housekeeping items before we go. As I said at the beginning, 01:15:41.009 --> 01:15:47.005 I'll email the Power Point out to everyone who registered and RSVP'd for this event. 01:15:47.006 --> 01:15:51.003 If you showed up but you weren't on the RSVP list, you're not going to get a copy of it. 01:15:51.003 --> 01:15:55.008 So, if you want a copy of it, send an email to that email address, 01:15:55.008 --> 01:16:01.004 federaltrainingandoutreach@EEOC.gov, let us know what you want, and we'll send you a copy 01:16:01.004 --> 01:16:08.000 of the Power Point. I heard Commissioner Feldblum say a brown bag on reasonable accommodation 01:16:08.001 --> 01:16:14.001 would be great and I think that's a great idea. If you have other ideas for brown bag events, 01:16:14.001 --> 01:16:17.007 send us an email, we'll take those into consideration.