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Meeting of June 17, 2009 - Proposed Rulemaking Implementing the ADA Amendments Act of 2008

Statement of Christopher J. Kuczynski, J.D., LL.M.
Assistant Legal Counsel

Introduction

Good morning. I will describe the key provisions of the Notice of Proposed Rulemaking you are considering today. Before describing the specific sections of the ADA regulation and interpretive guidance first published in 1991 that have been revised in response to the ADA Amendments Act, I want to make three general observations.

First, most of my remarks will focus on changes we have made to the portions of the regulation and interpretive guidance concerning the definition of the term “disability” – specifically section 1630.2(i) (the definition of “major life activities”), section 1630.2(j) (defining “substantially limits”), and section 1630.2(l) (the “regarded as” prong of the definition of “disability”). Toward the end of my remarks, I’ll mention a few other changes also made necessary by the ADA Amendments Act.

Second, as the Associate Legal Counsel has already said, Congress’s exhortations in the ADA Amendments Act that the definition of “disability” “shall be construed in favor of broad coverage” and “should not demand extensive analysis” primarily dictated the approach taken in the proposed NPRM. The text of the ADA Amendments Act itself and the Act’s legislative history frequently cite with approval the approach taken by courts under the Rehabilitation Act, including the Supreme Court’s landmark decision in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). It is this straightforward approach to coverage that the ADA Amendments Act intends to restore.

Finally, the proposed NPRM includes numerous examples in the text of the regulation itself that illustrate how to apply 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. We also think that greater specificity in the regulation itself will increase the likelihood that courts will defer to our interpretation of the law.

Section 1630.2(i): Major Life Activities

As you know, the ADA Amendments Act retains the same basic three-part definition of “disability”: 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 differences between the ADA Amendments Act and the ADA as it existed prior to January 1, 2009 has to do with how those terms are interpreted.

The Amendments Act itself has two non-exhaustive lists of major life activities. One is a list that includes many of the activities that EEOC has already recognized – walking, seeing, hearing, speaking, standing, lifting, thinking, concentrating, sleeping, etc. The Amendments Act also identifies three other activities that we have not previously recognized in any Commission-approved document -- bending, reading, and communicating. The second list of major life activities in the ADA Amendments Act are “major bodily functions,” which include normal cell growth, functions of the immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The NPRM includes all of the examples of major life activities listed in the ADA Amendments Act and some others. Reaching, sitting, and interacting with others have been included because EEOC has previously recognized them as major life activities. To the list of major bodily functions from the ADA Amendments Act we have added functions of the hemic, lymphatic, and musculoskeletal systems. (Note that the definition of “impairment” in section 1630.2(h), which we have not revised, mentions the hemic, lymphatic, and musculoskeletal systems, among others.)

Section 1630.2(i) also includes a definition of major life activities taken from the interpretive guidance accompanying the 1991 regulation: those basic activities that most people in the general population can perform with little or no difficulty. Several examples illustrate impairments that affect certain major life activities. 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. As the proposed rule indicates, the impairments offered as examples may affect major life activities other than those specifically identified.

Section 1630.2(j): Substantially Limits

Basic Definition

Consistent with the plain language of the ADA Amendments Act, section 1630.2(j)(1) says that an impairment is a disability if it substantially limits a major life activity. 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. 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.

Certain impairments will 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. A number of rules of construction that I will talk about next and a number of examples that I will talk about shortly illustrate how the lower standard for determining whether an impairment substantially limits a major life activity applies.

Rules of Construction

Section 1630.2(j)(2) includes five rules of construction and examples illustrating three of them. The first rule actually includes three related principles based on the text of the Amendments Act: the 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 second rule, consistent with Congress’s rejection of the decision in Toyota, says 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.” For example, someone with a twenty-pound lifting restriction of more than short duration does not have to show that he is substantially limited in performing activities of central importance to daily life requiring lifting. Someone who is substantially limited in seeing as the result of monocular vision (e.g., because of a limited visual field and/or lack of depth perception) need not demonstrate how the monocular vision substantially limits activities of central importance to daily life that require seeing.

The third rule of construction says that an impairment that substantially limits one major life activity need not limit other major life activities to be considered substantially limiting. Someone with diabetes whose endocrine function (i.e. ability to produce insulin) is substantially limited need not also show that he is substantially limited in eating or any other major life activity. An individual whose normal cell growth is substantially limited due to cancer need not also show that she is substantially limited in working or any other major life activity.

Citing to the ADA Amendments Act’s legislative history, the fourth rule of construction says 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. For example, someone with epilepsy will meet the definition of disability because he is substantially limited in major life activities such as functions of the brain or, during a seizure, functions such as seeing, hearing, speaking, walking, or thinking. Someone with diabetes will meet the definition of disability because he is substantially limited in functions of the endocrine system.

Finally, in response to anticipated confusion over the application of the “transitory and minor” exception to the “regarded as” definition of disability, the proposed rule includes a fifth rule of construction which makes it clear that impairments that last for fewer than six months may still be substantially limiting. This position, in fact, is consistent with Commission policy pre-dating the Amendments Act. We have said in our Compliance Manual Section on the Definition of the Term “Disability” that an impairment may be substantially limiting if it lasts for several months or more. Requiring that an impairment last for six months or more to be considered substantially limiting would in fact impose a stricter standard than the Commission has ever applied, not the broader standard that the ADA Amendments Act requires.

Ameliorative Effects of Mitigating Measures

Consistent with the ADA Amendments Act’s plain language, the proposed rule says that the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall not be considered in determining whether an impairment is substantially limiting. Examples in the proposed rule show how this principle would apply to individuals with a variety of impairments, such as diabetes that requires the use of insulin, seizure disorders and psychiatric impairments for which medication is taken, and hearing impairments for which some individuals utilize cochlear implants, hearing aids, telephone amplification systems, and similar hearing devices. An impairment may be a disability if it would substantially limit a major life activity without a mitigating measure even where an individual has never experienced limitations or has experienced only minor limitations resulting from the impairment.

The proposed rule includes examples of mitigating measures that come directly from the ADA Amendments Act: (1) medication, medical supplies, equipment, or appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (2) use of assistive technology; (3) reasonable accommodations or auxiliary aids or services; or (4) learned behavioral or adaptive neurological modifications. To this non-exhaustive list we have added “surgical interventions,” which the ADA Amendments Act’s legislative history identifies as another example of a mitigating measure.

Although ordinary eyeglasses and contact lenses are considered when determining whether someone is substantially limited in seeing, it is important to note that, consistent with the Amendments Act’s plain language, the eyeglasses or lenses must be “intended to fully correct visual acuity or eliminate refractive error” to meet this definition. As the regulation points out, eyeglasses or contact lenses that correct the vision of someone with severe myopia to 20/20 would be ordinary eyeglasses or contact lenses. Likewise, if the only visual limitation an individual has affects the ability to see well enough to read and ordinary reading glasses completely compensate for this visual loss, the ameliorative effects of the reading glasses would be considered. However, contact lenses or glasses that correct the vision of someone with a congenital eye condition only to 20/30 are not ordinary eyeglasses or contact lenses, and their ameliorative effects would be disregarded.

Impairments That Are Episodic or in Remission

Consistent with the plain language of the ADA Amendments Act, section 1630.2(j)(4) says that impairments that are “episodic or in remission” are disabilities if they would be substantially limiting when active. According to the proposed rule, examples may include, but are not limited to, impairments such as epilepsy, hypertension, multiple sclerosis, asthma, cancer, and psychiatric disabilities such as major depression, bipolar disorder, and post-traumatic stress disorder.

Examples of Impairments That Substantially Limit Major Life Activities

Section 1630.2(j)(5) identifies certain impairments that will obviously be substantially limiting – impairments that because of certain characteristics associated with them, will consistently meet the definition of “disability.” In addition to examples such as blindness, deafness, intellectual disabilities (formerly called mental retardation), partially or completely missing limbs, and mobility impairments requiring the use of a wheelchair, the proposed rule includes: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, and major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia.

It is important to note three points about subsection (j)(5). The ADA Amendments Act’s legislative history lends support to the view that impairments like those in subsection (j)(5) consistently will meet the definition of “disability.” The Amendments Act Report of the House Committee on the Judiciary, at page 6, states that Congress modeled the ADA definition of disability on the definition contained in the Rehabilitation Act, and said it wished to return courts to the way they had construed that definition. Describing this goal, the Committee report states that courts had interpreted the Rehabilitation Act definition "broadly to include persons with a wide range of physical and mental impairments such as epilepsy, diabetes, multiple sclerosis, and intellectual and developmental disabilities," even where a mitigating measure lessened their impact.

Second, the approach taken to the listed impairments does not undermine the importance of the “individualized assessment” that is the hallmark of ADA analysis not only for judges and lawyers, but for managers, supervisors, and human resource professionals committed to voluntary compliance with the law. However, the impairments listed in subparagraph (j)(5) are ones that should be found to be substantially limiting each time the individualized analysis is applied to them. For example, just as application of the individualized assessment to someone who is blind or deaf will consistently establish that the individual is substantially limited in seeing or hearing, application of the individualized assessment to someone with cancer will consistently reveal that the individual is substantially limited in normal cell growth. Application of the individualized assessment to someone who has diabetes will consistently reveal a substantial limitation in endocrine function. An individualized assessment of someone with multiple sclerosis or muscular dystrophy will consistently reveal substantial limitations in major life activities including neurological functions, walking, performing manual tasks, seeing, speaking, or thinking.

Third, the fact that the impairments listed in subsection (j)(5) will consistently meet the definition of “disability,” does not automatically mean that individuals with those impairments will prevail in litigation or will be entitled to any accommodations they might request. An individualized assessment will still be necessary to determine issues such as whether an accommodation is needed, whether an individual with a disability is qualified, whether an accommodation would pose an undue hardship, whether a covered individual would pose a direct threat, and, in an intentional discrimination case, whether an employer took a prohibited action on the basis of a disability.

Examples of Impairments that May Substantially Limit a Major Life Activity

Subparagraph (j)(6) of the proposed rule offers examples of circumstances under which certain impairments not listed in subsection (j)(5) may be substantially limiting. These are the types of impairments that are not obviously substantially limiting, but as to which a somewhat more detailed analysis will be necessary in order to determine whether they meet the ADA’s definition of “disability.” The subsection specifically identifies eight such impairments – asthma, high blood pressure, coronary artery disease, learning disabilities, a back or leg impairment, carpal tunnel syndrome, psychiatric disabilities such as panic or anxiety disorder and forms of depression other than major depression, and hyperthyroidism. The list of impairments, of course, is intended to be non-exhaustive.

I will not discuss the examples in detail, but want to mention two of them in particular for important points they make about the term “substantially limits.” The proposed rule says that an individual with a learning disability who is substantially limited in reading, learning, concentrating, or thinking as compared to most people because of the speed or ease with which he can read, the time required for him to learn, or the difficulty he experiences in concentrating or thinking, is an individual with a disability, even if he has achieved a high level of academic success, such as graduating from college. The determination of whether an individual has a disability does not depend on what an individual is able to do in spite of an impairment. A second example says that an individual with hyperthyroidism is an individual with a disability if he is substantially limited in the functioning of the endocrine system because he experiences sudden weight loss, rapid or irregular heartbeat, or nervousness and irritability due to overproduction of a hormone that controls metabolism. The example is intended to illustrate the point made in the ADA Amendments Act’s legislative history that the operation of a major bodily function may be substantially limited when an impairment causes it to overproduce or underproduce in some harmful fashion.

Substantially Limited in Working

Section 1630.2(j)(7) provides guidance on analyzing whether an impairment substantially limits the major life activity of working. Initially, we make the point that an individual with a disability will usually be limited in a major life activity other than working, therefore generally making it unnecessary to determine whether the individual is substantially limited in working. The NPRM recognizes, however, that there may be situations in which the interaction of an impairment with the requirements of a job may result in substantial limitations that would not exist outside the workplace. For example, someone who is not substantially limited in standing or lifting might still be substantially limited in working in jobs that require standing for extended periods of time (like many retail jobs) or lifting heavy packages.

Courts have struggled over the years with the analysis in EEOC’s current regulation defining what it means to be substantially limited in working, particularly with the concepts of a “class” or “broad range” of jobs. The proposed rule sets forth what should be a more straightforward analysis. First, the proposed rule says that an impairment “substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue as compared to most people having comparable training, skills, and abilities.” Like the analysis of “disability” generally, “whether an impairment substantially limits the major life activity of working must be construed broadly to the maximum extent permitted under the ADA and should not demand extensive analysis.”

The concept of a “type of work” replaces the concepts of a class or broad range of jobs. A type of work, the proposed rule says, may be defined in terms of the nature of the work or in terms of specific job related requirements. Examples of types of work include commercial truck driving (i.e., driving those types of trucks specifically regulated by the U.S. Department of Transportation as commercial motor vehicles), assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs. Job-related requirements characteristic of types of work include jobs requiring: repetitive bending, reaching, or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; driving; working under certain conditions, such as in workplaces characterized by high temperatures, high noise levels, or high stress; or working rotating, irregular, or excessively long shifts.

The proposed rule makes two other points that respond directly to the analysis in many court decisions under the ADA standards prior to January 1, 2009. First, the fact that an individual has obtained employment elsewhere is not dispositive of whether an individual is substantially limited in working. So, for example, the proposed rule says that someone who can’t perform jobs requiring repetitive bending or heavy lifting is still substantially limited in working, even if he has skills that qualify him to perform work that does not include these requirements. Someone who is denied a reasonable accommodation and therefore cannot perform manufacturing work requiring repetitive manual tasks could still be considered substantially limited in working, even if the individual was subsequently offered the same kind of work for another employer with an accommodation.

Second, the interpretive guidance points out that, consistent with Congress’s clearly expressed intent in the ADA Amendments Act that the focus in ADA cases should be on whether discrimination occurred and not on whether an individual meets the definition of “disability,” the statistical analysis that some courts have required in “working” cases is unnecessary to show that an individual is substantially limited in working.

Section 1630.2(k): Record of a Disability

The proposed rule makes a few changes to section 1630.2(k), which describes the second – or “record of” – prong of the definition of disability. One change is simply the addition of language that emphasizes the fact that the broad construction given to the term “substantially limits” under the first prong applies equally in situations where an individual claims to have a record of a disability. The proposed rule also includes two examples, one of which is intended to illustrate the Commission’s long-standing position that a record of a disability includes being misclassified as having had a substantially limiting impairment.

Section 1630.2(l): Regarded as Having a Disability

Proposed section 1630.2(l) describes the new “regarded as” standard set forth in the ADA Amendments Act. The proposed rule says that a covered entity that takes some prohibited action against an individual – failure to hire, termination, etc. – because of an impairment regards the individual as having a disability, unless the impairment that is the basis for the employer’s action is transitory (lasting or expected to last for six months or less) and minor. Several examples in the proposed rule show how this standard would apply. An employer that does not hire someone for a temporary job due to a sprained wrist that will prevent the individual from typing for three weeks has not regarded the individual as having a disability, since a sprained wrist is transitory and minor. But an employer who does not hire someone for a manufacturing job, believing she has carpal tunnel syndrome, regards the individual as having a disability, since carpal tunnel syndrome is not transitory and minor. The proposed rule also makes it clear that actions based on an impairment’s symptoms or based on an individual’s use of a mitigating measure (e.g., medication), amount to actions based on an impairment.

Lastly, consistent with the express language of the ADA Amendments Act, the proposed rule states that individuals covered only under the “regarded as” prong of the definition of disability are not entitled to reasonable accommodation. A new subparagraph added to section 1630.9 says that reasonable accommodations are available to individuals covered under either the first or second prongs of the definition of “disability.”

Section 1630.10(b): Qualification Standards Based on Uncorrected Vision

The proposed rule amends section 1630.10 of the regulation by adding a new subsection (b) implementing a provision of the ADA amendments Act requiring an employer to justify, as job-related and consistent with business necessity, qualification standards that screen out individuals from employment based on uncorrected vision. The interpretive guidance makes clear that an individual challenging such a standard need not establish that he or she is an individual with a disability. However, because we cannot predict whether courts will embrace this view, the guidance further states that individuals excluded from jobs because of qualification standards based on uncorrected vision will usually meet the “regarded as” definition of “disability.”

Other Changes

I want to mention just a few more less significant changes made necessary by language in the ADA Amendments Act. First, two new subparagraphs have been added to section 1630.1(c, both of which reflect language in the ADA amendments Act). Subparagraph (c)(3) says that nothing in the regulations alters the standards for determining eligibility for disability insurance benefits or state workers’ compensation benefits. Subparagraph (c)(4) says that the term “disability” shall be construed broadly. Second, we have changed the term “qualified individual with a disability” to “qualified individual” in section 1630.2(m), because the Amendments Act eliminates the term “qualified individual with a disability” in most places it appears in Title I. Third, a new subsection (b) in section 1630.4 says that an individual may not bring an ADA claim based on lack of disability, including a claim that he or she was denied an accommodation that someone with a disability was provided.

Conclusion

Thank you very much for the opportunity to outline the proposed rule. I will answer any questions you may have.