The Equal Employment Opportunity Commission just issued final regulations interpreting the Americans With Disabilities Act Amendments Act of 2008. Published at 29 CFR Part 1630, the new regulations take effect on May 14, 2011. Employers and their lawyers should become familiar with the Commission’s new interpretation of the Act’s definition of “disability.”
Title I of the original Americans With Disabilities Act of 1990, the employment-related provisions, took effect in 1992. The law in essence prohibits discrimination against individuals with disabilities, and requires employers to provide reasonable accommodation of those individuals unless doing so would cause an undue hardship.
But Congress did not agree with several Supreme Court decisions limiting the original law’s coverage. The purpose of the Americans With Disabilities Amendments Act is to overturn several of those decisions and expand the law’s coverage.
To constitute a covered disability, a physical or mental “impairment” must “substantially limit” one or more “major life activities.” The Amendments Act and regulations ensure that these terms are broadly construed to allow for maximum coverage. For example, the Commission emphasizes that the term “major” is not intended to impose a demanding standard. Additionally, the Amendments Act and the new regulations specifically reject the Supreme Court’s interpretation of “major life activities” as limited to activities “of central importance to daily life.”
The new regulations include a non-exhaustive list of major life activities, some of which are not listed in the statute. These include “interacting with others,” which likely will result in litigation over whether someone has a recognized mental impairment or merely a difficult personality. The Amendments Act clarifies that major life activities also include major bodily functions. The regulations list major bodily functions such as special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions, even though these are not listed in the Amendments Act.
The Amendments Act’s and new regulations’ treatment of the term “substantially limits” is the most significant change to the law. The Commission emphasizes that the term “substantially limits” should not be an onerous standard. Thus, “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.”
To that end, the determination of whether an impairment substantially limits a major life activity now must be made without regard to whether the individual ameliorates the effect of the impairment with “mitigating measures.” For example, a diabetic who controlled blood sugar levels with medication in the past might not be considered “substantially limited.” Now, the limitation must be evaluated without the mediation. So, a diabetic by definition will be substantially limited in the endocrine system’s functioning and likely the major life activity of eating as well. The elimination of “mitigating measures” from the analysis make federal law consistent with California’s Fair Employment and Housing Act, except that federal law still allows consideration of whether eyeglasses remedy a sight impairment.
The Commission clarified that even an impairment’s temporary or episodic limitation on major life activities can be substantially limiting. For example, epilepsy may qualify as a disability, even if seizures occur infrequently, because its effect on life activities and bodily functions is measured when the seizures occur. The regulations also recognize that impairments caused by pregnancy may qualify as a covered disability if substantially limiting, even though pregnancy itself, however, is not considered a disability and is temporary.
The Commission’s stated intention is that employers will not routinely challenge whether an individual seeking “reasonable accommodation” has a disability. Thus, the regulations include a list of impairments and corresponding substantial limitations of major life activities, thereby establishing medical conditions that will nearly always qualify as disabilities: “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.” Interestingly, the Commission expressly states there are no “per se” disabilities, but it is hard to understand how that statement is consistent with this list.
The new regulations also expand the Act’s coverage beyond “substantially limiting” impairments in cases alleging discrimination, as opposed to denial of reasonable accommodation. The Commission points out that individuals claiming discriminatory treatment merely have to prove the employer “regards” them as having a disability. This is a significant issue because individuals claiming they are “regarded as” disabled do not have to prove they are substantially limited in one or more major life activities or bodily functions. Rather, an individual claiming discrimination must establish only that he or she “has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both ‘transitory and minor.'” The term “transitory” means that the impairment lasts fewer than six months. The term “minor” will be litigated. And the employer will have to prove the “transitory and minor” defense applies.
On the other hand, the new law and regulations clarify that only persons with an “actual” disability are entitled to reasonable accommodation. People erroneously “regarded” as having an impairment may not claim the employer denied a reasonable accommodation.
Finally, the regulations also include “interpretive guidance” set out in an appendix to the regulations. The interpretive guidance provides more detailed information than the regulations themselves, and confirms that the new law protects many individuals who were not covered by the original law.
The Commission’s key message is that courts and employers should not devote much time to whether someone has a disability under the law. “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”
Put another way, employers must focus more on the functional job limitations that a claimed disability causes, and whether reasonable accommodations are effective and feasible. Employers should also train managers to avoid bias against employees with impairments. Our advice for California employers has long been “assume disability” in most cases; the same will hold true under the new law.