Stoel Rives Law Firm : World of Work Law Blog : Disabilities, FMLA, Military Leave, NLRA : Western United States

The Oregon Legislature is taking steps to keep Oregon's disability discrimination laws consistent with the federal Americans with Disabilities Amendments Act (ADA).  Last week, Senate Bill 874 passed out of the Senate Judiciary Committee on a 4-1 vote.  SB 874 will amend existing Oregon disability law to adopt the changes made to the ADA in 2008 through the ADA Amendments Act (ADAAA).

SB 874 contains four key changes to make Oregon law consistent with federal law:

1. prohibiting discrimination against individuals “regarded as” disabled whether or not their perceived impairment is perceived to limit a major life activity;
2. construing the term "disability" in favor of broad coverage;
3. considering an impairment that is episodic or in remission to be a disability if it would substantially limit a major life activity when active; and  
4. determining whether an impairment substantially limits a major life activity without regard to the effects of mitigating measures except ordinary eyeglasses.

Oregon has, with a few exceptions, consistently kept its disability discrimination laws consistent with the ADA.  Because of that, we expect SB 874 (or something very similar) to become law.  The World of Work will continue to keep you updated.

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Is driving a car a major life activity under the Americans with Disabilities Act (ADA)?  No, the Tenth Circuit Court of Appeals recently concluded, joining two other federal circuit courts that have held that just because a person cannot drive does not mean that person meets the legal definition of "disabled."  Kellogg v. Energy Safety Services, Inc.

Kellogg, who has epilepsy, sued her employer alleging disability discrimination.  Kellogg asserted that because she is not allowed to drive due to the risk of seizure, she is substantially limited in the major life activity of "driving."   After Kellogg prevailed on her claim at a jury trial, The Tenth Circuit reversed.   (The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah.)

The court held that driving is merely a "means to an end," and not a major life activity in and of itself.  For some plaintiffs, an inability to drive may prevent them from engaging in other major life activities (such as working), but because Kellogg presented no evidence that she was substantially impaired in any activity except driving, she failed to prove she was "disabled."  The Tenth Circuit thus joins both the Second and Eleventh Circuits in holding that driving is not a major life activity. 

Don't expect Kellogg to set precedent for long:  this case almost certainly would have been decided differently under the ADA Amendments Act (ADAAA), which goes into effect January 1, 2009.  Under the much broader definition of "disability" under the ADAAA, Kellogg's epilepsy alone almost certainly would have qualified her for the protections of the ADA.  For more on the ADAAA, check out the World of Work's coverage, here. 

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The White House yesterday confirmed that President Bush will sign the ADA Amendments Act ("ADAAA") into law.  The White House issued the following statement, which can be accessed here:

"The Americans with Disabilities Act of 1990 is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the Administration supports efforts to enhance its protections. The Administration believes that the ADA Amendments Act of 2008, which has just passed Congress, is a step in that direction, and is encouraged by the improvements made to the bill during the legislative process. The President looks forward to signing the ADAAA into law."

To read the final version of the law, click here.

The law will go into effect January 1, 2008.  The House of Representatives yesterday passed the version of the bill previously approved by the Senate, which included some employer-friendly revisions designed to reach a compromise.  For example, the new version removed a list of "per se" disabilities, and consistent with current law places the burden of proving a disability on the employee.  However, the new law will overturn the U.S. Supreme Court's decision in Sutton v. United Airlines that mitigating measures must be considered in determining whether an individual is disabled, and the Court's decision in Toyota v. Williams, which takes a restrictive view of what constitutes a substantial limitation in the major life activity of working. 

The ADAAA will make it much more difficult for employers to take the position that an individual is not "substantially limited in a major life activity" and therefore not disabled under the ADA.  More requests for accommodation (and more lawsuits) are expected to follow.  Watch the World of Work for continuing updates as the law goes into effect. 

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According to a recent Americans with Disabilities Act case from the U.S. Sixth Circuit Court of Appeals, a failure to accommodate an employee's disability may result in a constructive discharge and expose the employer to the same kind of liability it would face had it terminated an employee because of a disability.

In Talley v. Family Dollar Stores of Ohio Inc., Talley, a former store cashier with severe arthritis, could not stand more than 15 minutes without extreme pain.  She requested a stool to sit on while working, but the employer refused the request because employees complained of "favoritism" and wanted stools of their own.  After the employer refused her request for an accommodation, Talley quit her job and sued for disability discrimination under the ADA, claiming that her employer's refusal to accommodate her forced her to quit.

The Sixth Circuit agreed that Talley proved a claim for constructive discharge--in other words, the employer made her working conditions so intolerable that a reasonable person would feel compelled to resign.  If Talley proves her case to a jury, her former employer can be liable for several years' of backpay damages, as well as attorney's fees and possibly even punitive damages.  

This case underscores employers' obligation to provide reasonable accommodations for disabled employees.  While most anti-discrimination laws do not allow "favoritism," the ADA is different:  an employer does have an obligation to provide disabled employees with accommodations (such as giving a disabled cashier a stool) that non-disabled employees do not receive.  Perceived favoritism is simply not a defense.  For technical assistance in complying with the ADA, check out the U.S. Department of Justice's ADA Page. 

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Here's something to be watching:  a bill currently winding its way through Congress is likely to bring significant changes to the Americans with Disabilities Act.  The bill, knows as the ADA Amendments Act ("ADAAA"), will greatly broaden the scope of the ADA. 

Some highlights of the ADAAA:

• Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
• Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
• Creates a list of per se "major life activities"
• Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
• Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
• Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The ADAAA passed the House of Representatives on June 25, 2008 by a vote of 402-17.  The bill was introduced to the Senate on August 1, and reports are that at least 70 Senators have vowed to support the bill.  A vote is expected when the Senate reconvenes in September.  No word yet from the White House on whether President Bush will sign the bill into law, but it seems to have a veto-proof majority. 

To read an official summary of the ADAAA, click here.  To read the full text of the current bill, click here.  Stay tuned to the World of Work for updates on this landmark legislation. 

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