September 2008 Archives

September 22, 2008

ADA Amendments on President's Desk

Last week, the House approved the Senate's version of the ADA Amendments Act of 2008 (known as the "ADAAA"). The ADAAA now awaits the President, who has said he will sign it (just as his father signed the original ADA). Once signed, the amendments will take effect on January 1, 2009.

The ADAAA is the product of a broad coalition of business and civil rights groups that came together to undo several Supreme Court decisions that have limited the protections of the ADA. A primary concern of the law's drafters was to clearly express Congressional intent that the term "disability" should be construed in favor of broad coverage. To accomplish this, the ADAAA includes these provisions:

  • Major life activities include major bodily functions, such as the proper functioning of the immune system, cell growth, brain, and respiratory system. This language should preclude courts from finding that certain serious diseases, such as cancer, are not disabilities because they don't yet substantially limit a major life activity.
  • Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. This should also negate the tendency of some courts to find that some significant, even life-threatening diseases are not disabilities. 
  • A transitory impairment -- which does not qualify as a disability and is not covered by the ADA -- is defined as one that lasts for six months or less. These types of impairments have always been excluded, but were not clearly defined.
  • Mitigating measures -- such as medication, prosthetics, and other devices or aids used to ameliorate the effects of an impairment -- may not be considered when determining whether a person has a disability. The Supreme Court had held that these measures must be considered when determining whether a person suffers a substantial limitation to a major life activity, which resulted in many people with serious conditions being excluded from coverage.
  • The corrective power of ordinary glasses and contact lenses may be considered in deciding whether a person has a disability. However, employers may not use a test or qualification standard based on an applicant's uncorrected vision unless it's job-related and consistent with business necessity.
  • A person who is regarded as having a disability need not show that his or her employer believed that the impairment (whether actual or perceived) substantially limited a major life activity. The "regarded as" category of disability was intended to protect employees from stereotypes or unfounded assumptions about disabilities and impairments, but it wasn't entirely clear previously what the employer had to mistakenly believe. Also, the ADAAA makes clear that an employee who claims that he or she was regarded as having a disability is not entitled to a reasonable accommodation: no actual disability, no accommodation.

Experts agree that the ADAAA will result in more court rulings for employees (thus far, employees in ADA cases have fared pretty poorly in litigation). More employees will be found to have disabilities, and to therefore be entitled to reasonable accommodations and protection from discrimination.  

To learn more about the ADAAA, see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).

September 4, 2008

Lessons From the Olympics

I spent quite a bit of time watching the 2008 Beijing Olympics over the last few weeks. I loved witnessing the good sportsmanship that isn't dictated by national origin, language, or competitive spirit: Dara Torres helping Sweden's Therese Alshammar fix her ripped suit so she could swim in the semifinals of the 50 free, or Usain Bolt and Asafa Powell joking with one another before competing for gold.

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But according to an article by Steve DeMiglio and Jerry Potter of USA Today, it doesn't appear the Olympic spirit is dominating the women's golf establishment right now. In fact, the LPGA is requiring women golfers on its tour to pass an English proficiency exam or face suspension. The rationale for the requirement, according to the LPGA and some supporters, is that golfers need to be able to communicate in English to fulfill duties other than playing golf, such as attending press conferences. But some speculate that this is an attack aimed at South Korean golfers, who represent 45 of 121 international women on the tour and have won several important titles.

I don't doubt English proficiency is a valuable asset for anyone playing professional golf in the United States. It probably wouldn't have hurt for Michael Phelps or Nastia Luikin to learn Mandarin while attending the Olympics in Beijing, either, but somehow they managed just fine. Beyond excelling in their events, I assume they gave interviews on Chinese television, probably got some great endorsements from Chinese companies, and managed not to seriously offend any Chinese Olympic officials.

So how are LPGA golfers different? Offering them the opportunity to learn English -- great idea. Inferring that they can't do their jobs without it? That seems a little implausible. While I don't doubt that learning English is sometimes a job requirement, it's hard to understand the rationale here, especially because (as with the Salvation Army case we talked about a few months ago) it seems that until now, everyone got along playing golf in the LGPA and not speaking proficient English just fine. With the Olympics so recently showing us that athletic skill and competition are a universal language, I'm unconvinced.

Update 9/8/08: It appears the LPGA has backed off its language requirement in the face of opposition from lawmakers and sponsors, and will not impose suspensions on players who don't meet English proficiency requirements. However, fining the players is still a possibility, a spokeswoman says.

 

Alayna Schroeder