CalEmployeeRights

More on the ADA Amendments Act of 2008

     There's a good synopsis of the changes to the Americans with Disabilities Act ("ADA") that was recently passed and signed into law on September 25, 2008 by Long, Alex B.,Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008 (September 25, 2008). Northwestern University Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1273922. The article applauds Congress' efforts to clarify many of the issues surrounding the ADA, while also pointing out many unresolved issues left for the courts to determine. (To check out the previous post on the topic, click here.)

     -- Mythily Sivarajah

Jury Awards Plaintiff $1.3 Million Total Damages In Retaliation Claim

     A California jury awarded Jane Mootz $800,000 in non-economic damages for retaliation she suffered at the hands of her employer the California Department of Corrections and Rehabilitation.  

Congress Expands ADA’s Coverage, Overriding U.S. Supreme Court Decisions

       Congress passed a bill, S. 3406, amending the Americans with Disabilities Act (“ADA”), reversing several U.S. Supreme Court decisions and enhancing anti-discrimination laws in employment for individuals with disabilities. The bill was a two-year bipartisan effort in response to a litany of federal cases that precluded many disabled employees from the protections intended by Congress in enacting the ADA.

       Due to several federal courts' narrow construction of what an individual with a disability entails, many employees with conditions like diabetes, epilepsy or other illnesses that can be controlled by medication or other means were denied coverage under the ADA. One of the major changes to the ADA now prevents mitigating cirumstances like medication, prosthesis or other measures from being considered in determining whether an individual may be categorized as disabled. This amendment reverses the Supreme Court decision in Sutton v. United Air Lines, Inc. (1999) 527 U.S. 471.

Disability Discrimination: Failure to Accomodate vs. Refusal to Engage in Interactive Process

An employer in California has at least two obligations with respect to employees with disabilities.   Under California's Fair Employment and Housing Act (FEHA) Gov. Code section 12940, it must provide reasonable accommodations (subpart (m)) and it must engage in good faith in an interactive process to determine effective reasonable accommodations (subpart (n)).

In Wysinger v. Automobile Club of Southern California (November 29, 2007) ___Cal.App.4th ___, the jury found the employer not liable for failure to provide reasonable accommodations, but liable for failure to engage in the interactive process.  Auto Club appealed, contending these findings were inconsistent.  But the Court of Appeal affirmed:  These are separate obligations.  And the jury could reasonably have found that "there was no failure to provide a required accommodation because the parties never reached the stage of deciding which accommodations were required.  [The employer] prevented this from happening by its refusal to engage in the interactive process.