EEOC's New ADAAA Regulations: Something for Everyone?
By Louis Lopez and Daniel Vail1
On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) published its much-anticipated final regulations under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA or Act), along with a newly-revised “appendix” interpreting and explaining these new rules. See 76 Fed. Reg. 16978 – 17,017 (Mar. 25, 2011). Hailed by business and labor alike as a model of legislative cooperation and compromise, the ADAAA was the product of extensive negotiations involving a broad spectrum of employer groups and disability rights advocates and ultimately had overwhelming bipartisan support. Like the legislation, the final regulations and the revised appendix also are a bipartisan product, having been approved by members of both political parties represented on the Commission. Further, the new rules and appendix contain provisions that should satisfy both the defense and plaintiff bars.
Since the Americans with Disabilities Act (ADA) was first enacted in 1990, “disability” for these purposes has been defined as (1) a “physical or mental impairment” that “substantially limits” a “major life activity”; (2) a “record of” such an impairment; and/or (3) being “regarded as” having such an impairment. In passing the ADAAA, Congress found that certain Supreme Court decisions had construed this definition too restrictively, and that the EEOC’s original ADA regulations had expressed too high a standard for coverage. Accordingly, the express purposes of the ADAAA include “convey[ing] that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” and “express[ing] Congress’ expectation that the [EEOC] will revise . . . its current regulations . . . to be consistent with this Act . . . .” See ADAAA §§ 2(b)(5), (6).
Consistent with this Congressional intent, the final regulations explain that “[t]he primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA.” 76 Fed. Reg. 17,000. Thus, while the final regulations (like the statute) retain the basic structure of the three-pronged definition of “disability” from the original ADA, the rules make clear that this definition is now to be understood and applied in a fundamentally different way.
“Regarded As” Claims
For example, the final regulations (like the Act itself) take a markedly different approach to the “regarded as” part of the definition. Under the ADAAA and the new rules, an individual is now “regarded as” disabled if the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.” This new “impairment standard” under the third prong represents a seismic shift in proving ADA coverage. The terms “substantially limits” and “major life activity” are simply no longer relevant to a determination of whether an individual is “regarded as” disabled.
As indicated, the only exception to this “regarded as” rule relates to impairments that are both “transitory and minor.” The new regulations do not define “minor” for these purposes. However, they do explain that “transitory” means “lasting or expected to last six months or less.” 76 Fed. Reg. 17,003. The final rules explain that this “transitory and minor” exception only applies to “regarded as” claims (and not to “actual disability” or “record of” claims). The new regulations also provide that this “transitory and minor” exception is an affirmative defense, and that whether an actual or perceived impairment actually is or would be transitory and minor must be determined objectively. Thus, the employer’s subjective perception of whether an impairment is “transitory and minor” is irrelevant.
While the ADAAA clearly made coverage under the “regarded as” prong easier to establish, the Act also clarified that individuals who are covered only under this third prong are not entitled to reasonable accommodation. The final rules reiterate this point. At the same time, the final rules also emphasize that “[w]here an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, it is generally unnecessary to proceed under the ‘actual disability’ or ‘record of’ prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.” See 76 Fed. Reg. 17,000. Of course, an individual always may choose to proceed under any one or more of the three prongs in the definition of disability.
“Actual” and “Record Of” Claims
The final rules also provide extensive guidance on how to interpret the “actual disability” and “record of” prongs of the definition. In claims brought under these first and/or second prongs, a proper understanding of the terms “impairment,” “substantially limits,” and “major life activity” is essential.
The final regulations retain the definition of “physical impairment” that was in the old rules – i.e., that a physical impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems. However, the final rules now make the regulatory list of possible affected body systems illustrative and non-exhaustive.
The final rules also contain a non-exhaustive list of “major life activities,” which includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. In addition, the final regulations provide that major life activities include the operation of a major bodily function, such as functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The new rules also explain that the operation of a major bodily function includes the operation of an individual organ within a body system. Finally, the new rules caution that in determining other examples of major life activities, the term “major” shall not be interpreted strictly to create a demanding standard for disability, and whether an activity is a major life activity is not determined by reference to whether it is of “central importance to daily life.”
The new regulations do not provide a precise definition of “substantially limits.” Instead, the EEOC has provided nine “rules of construction” for applying the concept. Under the rules of construction, not every impairment will constitute a disability, and the determination of whether an impairment substantially limits a major life activity requires an individualized assessment. According to the rules of construction, an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. This comparison usually will not require scientific, medical, or statistical analysis (though nothing in the regulations is intended to prohibit the presentation of such evidence to make such a comparison where appropriate). Critically, the rules of construction also make clear that the “substantially limits” inquiry should not demand extensive analysis. The primary object of attention in cases brought under the ADA should be whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, under the rules of construction, the standard for “substantially limits” is to be lower than what is was pre-ADAAA, and an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Further, the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (except that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in making this determination). In addition, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
According to the revised regulations, once the nine principles are applied, “the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage” under the first and/or second prongs. See 76 Fed. Reg. 17,001. “Given their inherent nature,” the EEOC’s regulations explain, “these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity.” Id. Therefore, the regulations provide, “with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.” Id.
The new rules then give examples of various impairments that unquestionably substantially limit at least one major life activity/major bodily function. For example, according to the final regulations, deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.
The regulations appear to contain at least something for every stakeholder. Management lawyers defending ADA claims may take some comfort from the EEOC’s explicit acknowledgment that the determination of disability is still an individualized assessment and that not every impairment will constitute a disability (even under the new third prong, given the “transitory and minor” exception). At the same time, individuals seeking to enforce their right to be free from disability-based discrimination should welcome the parts of the rules emphasizing that the focus should not be on coverage at all, and providing examples of conditions that “virtually always” will constitute a disability under the Act.
The new regulations and revised appendix become effective on May 24, 2011. The regulatory text, revised appendix, a fact sheet about these documents, and two Question and Answer guides on them (including one for small businesses), is available on the EEOC’s website at http://www.eeoc.gov/laws/statutes/adaaa_info.cfm.