Wednesday, December 31, 2008

Appeals courts start to acknowledge impending ADAAA effective date

The ADA Amendments Act takes effect shortly, and the 6th Circuit Court of Appeals has already given a good indication of the dramatic effect these amendments might have for both employees and employers. In Verhoff v. Time Warner Cable, Inc., 2008 WL 4691794 (6th Circuit October 24, 2008), the trial court had granted summary judgment in an ADA case, with the appeals court affirming. The appeals court went on to note, however, that had the ADAAA already been in effect, the outcome would have been markedly different. The court wrote:
[C]ongress has recently enacted significant changes to the ADA. ADA Amendments Act of 2008 (citations omitted). Although these changes do not affect our decision today, we make three observations. First, there is no longer any dispute that ‘sleeping’ and ‘thinking’ are major life activities. Congress has expanded the class of major life activities to include ‘caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.’

Second, we relied on Sutton, 527 U.S. at 482, to find that Verhoff's inability to sleep well was largely ameliorated by his use of sleep medication. But Congress has explicitly rejected the Sutton Court's reasoning, and, the ADA, as amended, now states that the 'determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as ... medication.' Third and finally, Congress outright rejected the Supreme Court's directive in Toyota, 534 U.S. at 196, that the ADA's terms should be 'interpreted strictly to create a demanding standard for qualifying as disabled.' instead, Congress now tells us that the definition of disability in [the ADA] shall be construed in favor of broad coverage of individuals under this Act.

A comparable October decision out of the 10th Circuit also acknowledged the ADAAA in vacating an ADA verdict where the major life activity was claimed to be ‘driving,’ and the Plaintiff was an epileptic. The Court noted there that under the ADAAA the diagnosis of epilepsy is alone sufficient for an ADA ‘regarded as’ claim. See Kellogg v. Energy Safety Services Inc., 2008 WL 4571962 (10th Cir. Oct. 15, 2008).

We wonder whether when the EEOC opens up its doors again on January 2, 2009 it will be hit with a flood of ADA claims which could have been filed earlier, but were waiting for the new law to take effect.

Tuesday, December 30, 2008

Welcome to Human Racehorses

More than thirty years ago the late great Gilda Radner, playing Emily Latella, asked, "What's this about America's vanishing Race Horses?" In today's world, and especially the economy of the first decade of this millenium, we may feel that the workplace is less of a rat race and more of a horse race, making everyone a kind of 'human racehorse.'

On this blog I will keep current with developments in employment law, human resources developments, and to a lesser extent labor law. I am a lawyer in Pennsylvania, so my focus will tend to be more 3rd Circuit centric, but that doesn't mean I won't observe and comment on things I see outside my home base.

Note that nothing I post here is 'legal advice.' Nor could it be considered advisory. It's just my own opinions and observations on the industry in which I work. I hope you find it worth your visit.