Experts Discuss EEOC’s Proposed ADAAA Regulations
The US Equal Employment Opportunity Commission (EEOC) may have gone beyond what Congress intended in the ADA Amendments Act of 2008 (ADAAA), according to experts discussing the agency’s proposed ADAAA regulations at a National Employment Law Institute (NELI) teleconference on July 1, 2009. Acknowledging that the proposed rules have yet to be published, David Fram, NELI’s ADA & EEO Services director, and Michael Peterson, Associate General Counsel & Director of Labor and Employment Policy to HR Policy Association, compared the proposed regulations as described by EEOC Assistant Legal Counsel Christopher J. Kuczynski to the text of the ADAAA, its legislative history, relevant court decisions and the EEOC’s historic position on particular issues. Fram testified before Congress about the ADA and the proposed changes to the law, and Peterson was a member of the primary group of negotiators on the ADAAA, representing all major employer associations.
The ADAAA, effective January 1, 2009, expands the scope of the ADA’s coverage. At a meeting on June 17, 2009, the EEOC approved its proposed regulations implementing the statutory amendments. Kuczynski, in a written statement (statement), described the key provisions of the proposed rules, which are currently under review by the Office of Management and Budget and other federal agencies. Kuczynski’s statement is posted on the EEOC’s website at http://www.eeoc.gov/abouteeoc/meetings/6-17-09/kuczynski.html.
Fram opined that absent substantial outcry by the public or Congress, the EEOC’s proposed regulations are unlikely to undergo much change. He suggested that while employers do not need to change their policies now to conform to the anticipated rules, it may be a good idea to do so since the EEOC may take the position that the regulations clarify the law as it currently exists, making its regulations retroactive to the effective date of the ADAAA.
As Kuczynski noted in his statement, under the ADAAA, the basic definition of “disability” is retained: “a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment.” The changes made by the ADAAA have to do with how those terms are interpreted.
Major life activity. While the EEOC’s proposed regulations do not change what is an “impairment” under the ADA, they expand on the list of what constitutes a “major life activity.” Over the years, the EEOC and courts have taken a very broad view of what are life’s major activities, according to Fram. The proposed regulations list as major life activities all of those the EEOC has always listed, but Fram was “surprised” that the agency did not take the opportunity to add “driving” or “sexual activity” to the list. (Statement, p. 5) As he noted, this is good news for employers. Peterson was similarly taken by surprise – he said there was support for inclusion of sexual activity in the Report of the House Committee on Education and Labor (Education & Labor Report). ( See Education & Labor Report, June 23, 2008, HR Policy website, http://www.hrpolicy.org/downloads/2009/HR%203195%20Ed%20&%20Labor%20Report.pdf).
Substantially limiting. The proposed regulations, consistent with the language of the ADAAA, provide that “an impairment is a disability if it substantially limits a major life activity,” according to Kuczynski. The prior standards implemented by the Supreme Court in Toyota Motor Mfg, Kentucky, Inc v Williams [ 9 ADD ¶9-204] – “severely restricts” – and by the EEOC – “substantially limits” – were rejected as too high to establish coverage. The proposed rule, according to Kuczynski, states that an impairment “need not severely restrict or significantly restrict performance of a major life activity.” (Statement, p. 2) Fram pointed out that the ADAAA and the legislative history are silent as to what it means to be “substantially limited.” The proposed regulations provide a ceiling by restating the statute, but give no floor, Fram said.
Compared to whom? As to whether an individual should be compared to a person in his shoes or to the general population when determining whether there is a substantial limitation in a major life activity, the EEOC’s proposed regulations make the comparison to most persons in the general population. (Statement, p. 3) Peterson described the EEOC’s position as partly consistent with the legislative history, but “disturbing” because it omits the initial part of the appropriate standard – that the major life activities are restricted as to the “condition, manner or duration” under which they can be performed. The legislative history of the original ADA, as well as the 2008 amendments, cites the “condition, manner or duration” standard, Peterson advised. By eliminating this standard from the proposed regulations, the EEOC may have gone too far.
Relevant evidence. When determining whether an individual is substantially limited in a major life activity, courts have been divided as to whether the relevant evidence includes looking at both what the individual can do and can not do, Fram observed. While the EEOC took the position that looking at what an individual can not do was the only relevant inquiry, the Supreme Court held in Toyota that what the individual can do is also relevant, at least as to the particular major life activity examined. As a result, a line of cases came down that looked at both what the individual can and can not do in determining whether there is substantial limitation in the performance of a major life activity.
The ADAAA reversed the Toyota decision as to the “severely restricts” standard, but arguably, not as to what is the relevant evidence, Fram said. According to Kuczynski, the proposed regulations state that it is only relevant to look at what an individual can not do – not what the individual is able to achieve despite the impairment. (Statement, p. 6) Fram considers this statement very important because it reverses the line of cases derived from Toyota – a good development for plaintiffs, but not for employers. It will be interesting to see if the courts will agree, or find the EEOC’s rule arbitrary and capricious, Fram said.
Peterson noted that the proposed regulations are not necessarily inconsistent with the legislative history, which makes clear that the attainment of a person is not particularly good to look at, specifically in the context of education cases. The legislative history is silent on this issue though, and Peterson does not believe it can be said that Congress intended to change the can or can not do issue – the EEOC may be going further than intended by reverting to its position prior to Toyota. The difference between what a person can or can not do, and what the person has achieved, is an important distinction – one that the EEOC is blurring in its proposed regulations, Peterson said.
Duration of condition. Fram pointed out that the ADAAA does not specify how long a condition must last in order to be considered substantially limiting. But the statute does state that a person is not “regarded as” disabled when a condition is minor and lasts for less than six months. Kuczynski’s description of the proposed regulations indicated that conditions lasting less than six months can be covered under the actual or “record of” disability prongs. (Statement, p. 3-4) Fram advised that the EEOC is clearly saying that six months is not the rule as to how long a condition must last to be substantially limiting. He suggested that employers that have applied a six-month rule should change to a three-month rule.
Mitigating measures. The ADAAA requires that an individual’s condition be analyzed without regard to mitigating measures such as medicine, behavioral modifications or most assistive technology, and specifically rejects the Supreme Court’s Sutton v United Airlines, Inc opinion [ 6 ADD ¶ 6-217] holding to the contrary. The proposed regulations go further, though. Kuczynski advised that the proposed regulations have added “surgical interventions” to the non-exhaustive list of mitigating measures that should be disregarded. (Statement, p. 4) Fram opined that a smart plaintiff’s attorney may argue that “surgical interventions” includes stitches, without which, a person could bleed to death – many individuals have a history of having received stitches. This could really expand the ADA and create an automatic “record of” disability, Fram said.
The Education & Labor Report mentions surgical intervention (p. 15), Peterson pointed out. But the notion was that of a current surgical intervention, rather than one that occurred long ago. Peterson also suggested that a bifurcated approach, such as the one taken by the Fifth Circuit Court of Appeals in Washington v HCA Health Servs of Tex, 152 F.3d 464 [ 5 ADD ¶5-205] (5thCir 1998), may be best. Most mitigating measures would not be taken into consideration under this approach, but the court would consider whether the individual is generally cured by intervention.
Eyeglasses and contact lenses. The ADAAA provides that the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorating effects “ordinary eyeglasses or contact lenses.” The statute defines “ordinary eyeglasses or contact lenses” as “lenses that are intended to fully correct visual acuity or eliminate refractive error.” Kuczynski said that under the proposed regulations, contact lenses or glasses that correct an individual’s vision to only 20/30 would not qualify as “ordinary eyeglasses or contact lenses, and their ameliorative effects would be disregarded.” (Statement, p. 4) If not completely corrected, the glasses or contact lenses are not taken into consideration. Thus, the proposed regulations go further than the statute, adopting an “effect” standard rather than an “intent” standard, Fram advised. He opined that this may prove problematic for the EEOC.
Major life activity of working. The courts and the EEOC have always looked at whether an individual is able to perform a class or broad range of jobs in determining substantial limitation in the major life activity of working, Fram noted. On its face, the ADAAA does not change that, he said. But according to Kuczynski’s statement, the proposed regulations change the analysis to the type of work, rather than a class or broad range of jobs, Fram pointed out. (Statement, p. 6-7)
Peterson views this as the most problematic issue arising from the EEOC’s proposed regulations for two reasons. First, there is no statutory instruction to make a change. Second, there is no legislative history supporting the change. Peterson said that from the beginning, it was the intent of Congress and the negotiators that there would be no change to the major life activity of working. The class/broad range analysis has always been applied in the Rehabilitation Act and the ADA. The Education & Labor Report states that the committee did not intend that the class/broad range of jobs analysis needed to be changed (p. 14). The Judiciary Committee’s report states the same thing, Peterson advised. (House Judiciary Committee Report, p. 18, June 23, 2008) Moreover, the negotiators specifically said that the class/broad range analysis should still apply, he said. Peterson opined that the EEOC’s new definition will not stand up because it’s contrary to the statutory call to look to the Rehabilitation Act and the legislative history.
In determining whether an individual is limited in the major life activity of working, courts generally look at what jobs the person can perform, Fram instructed. But, since the EEOC has taken the position that it is what the individual can not do that should be examined in determining whether there is a substantial limitation in a major life activity, the EEOC will probably take the position that the inquiry should focus on what jobs the individual can not perform. Peterson is not convinced the courts will agree, and recommends that when litigating, employers should argue that both what can and can not be done should be examined. But in the workplace, the EEOC’s position should be followed just to be safe.
Per se list. The ADAAA did not change the individualized analysis called for in disability cases, but the EEOC’s proposed regulations, as described by Kuczynski, provide a list of conditions that will always be considered disabilities, Fram pointed out. (Statement, p. 5) Fram is concerned that the EEOC is taking the position that an employer will have no argument against these asserted “disabilities,” which he finds strange in light of Kuczynski’s statement that the importance of an individualized assessment is not undermined. Peterson commented that while there is some language in different reports that might support a per se list, the legislative history makes clear that a functional analysis – an individualized assessment – must be made.
Uncorrected vision qualification standards. Fram advised that employers using uncorrected vision standards need to be aware of related provisions in the EEOC’s proposed regulations. A subsection is added to implement the ADAAA provision requiring employers to justify as job-related and consistent with a business necessity, any qualification standard that is based upon uncorrected vision, according to Kuczynski. (Statement, p. 8) The regulation clarifies that an individual who challenges such a standard need not show s/he is an individual with a disability. Further, individuals excluded from jobs due to their failure to meet such uncorrected vision standards will usually meet the “regarded as” disabled definition.
NELI’s teleconference, EEOC’s Proposed ADAAA Regulations, was presented on July 1, 2009, with a second teleconference scheduled for July 9. For more information about NELI and upcoming programs and conferences, visit http://neli.org. The House Education & Labor Report, the House Judiciary Committee Report and other documents related to the legislative history of the ADAAA are posted on the HR Policy Association’s website at http://hrpolicy.org/portal_main.aspx?sid=19.
Reprinted with permission. © CCH
(Submitted July 10, 2009)
<p>The ADAAA, effective January 1, 2009, expands the scope of the ADA’s coverage. At a meeting on June 17, 2009, the EEOC approved its proposed regulations implementing the statutory amendments.</p>