EEOC approves proposed rule changes to conform regulations to the ADAAA
The US Equal Employment Opportunity Commission (EEOC) will revise its regulations to conform to changes made by the ADA Amendments Act (ADAAA) of 2008, which makes it easier for an individual seeking protection under the Americans with Disabilities Act (ADA) to establish that he or she has a disability, the federal agency has advised. The three-member Commission (there are two vacancies) voted 2 to 1 to adopt proposed rules changes at a public meeting on June 17, 2009.
“In approving these proposed regulations, the EEOC today is taking a significant step toward returning the ADA to the broad and strong civil rights statute that Congress originally intended it to be,” said EEOC Acting Chairman Stuart J. Ishimaru. “The proposed regulations will permit individuals with disabilities to participate to the fullest extent possible in the American workplace.”
“Today’s vote is historic,” added Acting EEOC Vice Chair Christine M. Griffin. “These regulations will serve to shift the focus of the courts from further narrowing the definition of disability and putting it back to where Congress intended when the ADA was enacted in 1990. Courts should now focus on whether discrimination based on disability is occurring in the workplace. The protections afforded by the ADA AA and these new regulations are important for all workers including our returning wounded warriors who certainly deserve the right to re-enter a workforce free of discrimination.”
Background. The ADA was signed into law in July 1990. The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The statute requires employers to make reasonable accommodations to employees and job applicants with disabilities —defined as people with mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who, while not actually disabled, are regarded as disabled.
The ADAAA, which went into effect January 1, 2009, makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s prior ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability as defined by the ADA. The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.
The ADAAA also states that Congress expects the EEOC to revise its regulations to conform to changes made by Act, and expressly authorizes the EEOC to do so.
Initial stage. The EEOC’s approval of the rules changes is an initial stage in the regulatory process. The next step is review by the Office of Management and Budget and federal agencies pursuant to Executive Order 12067, without public comment. Earlier version revised. As Peggy Mastroianni, Associate Legal Counsel for the EEOC, noted in a written statement, an earlier version of the proposed rule failed to get Commission approval last December. Describing subsequent efforts, Mastroianni said: “[W]e worked intensely to fashion a Notice of Proposed Rulemaking that would from beginning to end reflect the intent of Congress. We coordinated productively with the Commission’s program offices -- the Office of General Counsel, Office of Federal Operations, and Office of Field Programs; we went back to the legislative history again and again; and we thought long and hard about how the Amendments Act intends to change the way that ADA claims are addressed at EEOC and in the courts.”
A new draft rule was circulated to the Commission on April 28, 2009 for a brief period that was later extended, according to Mastroianni. “During this time, we discussed the content of the proposed rule with the offices of the Commissioners,” she said. The proposed rule reflects some changes that resulted from the briefing period.
Illustrative examples. In a written statement, Christopher J. Kuczynski, Assistant Legal Counsel for the EEOC, provided a detailed description of the proposed rule as revised. He pointed out that “numerous examples” are provided in the text of the proposed regulation to illustrate the application of the revised definition of “disability.” “We think that putting the examples in the regulation itself, rather than the interpretive guidance, is more helpful to individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes,” he said. “We also think that greater specificity in the regulation itself will increase the likelihood that courts will defer to our interpretation of the law.”
Major life activities. Kuczynski noted that the ADAAA itself includes two non-exhaustive lists of major life activities. The first list includes many of the activities already recognized by the EEOC: walking, seeing, hearing, speaking, standing, lifting, thinking, concentrating, sleeping, etc. It also includes three additional activities not previously recognized in any EEOC-approved document: bending, reading and communicating. The second list of major life activities in the ADA are “major bodily functions,” Kuczynski notes. These “include normal cell growth, functions of the immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions,” he said.
The proposed rule includes all of the examples of major life activities that are listed in the ADAAA, as well as some others, according to Kuczynski. “Reaching, sitting, and interacting with others have been included because EEOC has previously recognized them as major life activities,” he said. “To the list of major bodily functions from the ADA Amendments Act we have added functions of the hemic, lymphatic, and musculoskeletal systems.” He noted that the definition of “impairment” in 29 CFR section 1630.2(h), which was not revised, mentions the hemic, lymphatic and musculoskeletal systems.
Kuczynski noted that proposed section 1630.2(i) also includes a definition of major life activities that is taken from the interpretive guidance for the 1991 regulation: basic activities that most individuals in the general population are able to perform with little or no difficulty. There are several examples illustrating impairments that affect particular major life activities, Kuczynski said. “Kidney disease affects bladder function; cancer affects normal cell growth; diabetes affects functions of the endocrine system (e.g., production of insulin); epilepsy affects neurological functions or functions of the brain; and HIV and AIDS affect functions of the immune system and reproductive functions.” The proposed rule notes that the impairments used as examples may affect major life activities other than the ones specifically identified, Kuczynski pointed out.
Substantially limits. Section 1630.2(j)(1) of the proposed rule provides that an impairment is a disability if it substantially limits a major life activity, which is consistent with “the plain language” of the ADAAA, Kuczynski advised. “Congress clearly expressed its view that the Supreme Court’s interpretation of the term ‘substantially limits’ to mean ‘severely restricts’ and the EEOC’s Title I regulation that defined ‘substantially limits’ as ‘significantly restricted’ both expressed [too] high a standard for establishing coverage,” he explained. “The proposed rule states explicitly that in order to be ‘substantially limiting,’ an impairment need not severely restrict or significantly restrict performance of a major life activity.”
Kuczynski pointed out that some impairments would consistently fall short of this standard. “Section 1630.2(j)(8) of the proposed rule includes language indicating that temporary, non-chronic impairments of short duration with little or no residual effects, such as a cold, seasonal or common influenza, a sprained joint, and a broken bone that is expected to heal completely usually will not substantially limit a major life activity,” he said.
Rules of construction. As to the application of the lower standard for determining whether an impairment limits a major life activity, Kuczynski discussed five rules of construction that are set forth in section 1630.2(j)(2).
The first rule includes three related principles, based on the text of the ADA, that were identified by Kuczynski: “[T]he focus in ADA cases should be on whether discrimination occurred, not on whether someone meets the definition of ‘disability’; the definition of ‘substantially limited’ should be construed broadly to the maximum extent allowable under the ADA; and the determination of whether someone has a disability should generally not demand extensive analysis.”
The first rule includes three related principles, based on the text of the ADA, that were identified by Kuczynski: “[T]he focus in ADA cases should be on whether discrimination occurred, not on whether someone meets the definition of ‘disability’; the definition of ‘substantially limited’ should be construed broadly to the maximum extent allowable under the ADA; and the determination of whether someone has a disability should generally not demand extensive analysis.”
Kuczynski said the second rule of construction, “consistent with Congress’s rejection of the decision in Toyota,” provides that “an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform ‘activities of central importance to daily life.’”
The third rule discussed by Kuczynski provides that “an impairment that substantially limits one major life activity need not limit other major life activities to be considered substantially limiting.”
Citing to ADAAA regulations, the fourth rule of construction provides that “comparison of an individual’s limitation to that of most people in the general population often may be made using a common-sense analysis without resorting to scientific or medical evidence,” Kuczynski explained.
The fifth rule, “in response to anticipated confusion over the application of the ‘transitory and minor’ exception to the ‘regarded as’ definition of disability,” clarifies that “impairments that last for fewer than six months may still be substantially limiting,” Kuczynski advised. “This position, in fact, is consistent with Commission policy pre-dating the Amendments Act,” he said.
Many other aspects of the proposed rule approved by the Commission were discussed by Kuczynski, including: ameliorative effects of mitigating measure, impairments that are episodic or in remission, examples of impairments that substantially limit major life activities, record of a disability, regarded as having a disability, and qualification standards based on uncorrected vision. The full text of Kuczynski’s and Mastroianni’s written statements are posted on the EEOC’s website at: http://www.eeoc.gov/abouteeoc/meetings/6-17-09/index.html EXE: http://www.eeoc.gov/abouteeoc/meetings/6-17-09/index.html.
Reprinted with permission. © CCH
<p>EEOC approves proposed rule changes to conform regulations to the ADAAA The US Equal Employment Opportunity Commission (EEOC) will revise its regulations to conform to changes made by the ADA Amendments Act (ADAAA) of 2008, which makes it easier for</p>
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