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

PRESENT:

STUART J. ISHIMARU, Acting Chairman (Via Teleconference)
CHRISTINE M. GRIFFIN, Acting Vice Chair
CONSTANCE S. BARKER, Commissioner

ALSO PRESENT:

JAMES LEE Deputy General Counsel
DIANNA JOHNSTON Assistant Legal Counsel
BERNADETTE B. WILSON Program Analyst

This transcript was produced from video tapes provided by the Equal Employment Opportunity Commission.

TABLE OF CONTENTS

Announcement of Notation Votes

Motion to Close a Portion of the
Next Commission Meeting

Notice of Proposed Rulemaking for
the Americans with Disabilities
Act (ADA) Amendments Act of 2008

Motion to Adjourn

Adjournment

P R O C E E D I N G S

10:23 a.m.

ACTING VICE CHAIR GRIFFIN: Okay. Good morning, everyone. We're going to begin. Thank you for your patience. We do want to give everyone a chance to get in the door. As I said before, we are a secure Agency, and we needed to process everyone through. So I apologize for the delay.

I will actually be chairing the meeting this morning. Chairman Ishimaru is participating by telephone.

Chairman Ishimaru, are you there?

ACTING CHAIRMAN ISHIMARU: I am here.

ACTING VICE CHAIR GRIFFIN: Great. Chairman Ishimaru is on travel out in -- I think you're in California. Where are we calling you from?

ACTING CHAIRMAN ISHIMARU: I am in California.

ACTING VICE CHAIR GRIFFIN: You are in California.

Well, welcome everyone, for those of you that haven't been at our new facility here at 131 M Street, welcome.

In accordance with the Sunshine Act, today's meeting is open to public observation of our deliberation and voting.

At this time, I'm going to turn to Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting.

MS. WILSON: Good morning, Acting Chairman Ishimaru, Acting Vice Chair Griffin and Commissioner Barker. I'm Bernadette Wilson from the Executive Secretariat.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible.

Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in the case of an emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.

During the period April 22, 2009 through June 15, 2009, the Commission acted on seven items by notation vote:

Approved litigation on four cases; Approved a Notice of Proposed Rulemaking adding GINA to the EEOC procedural regulations;

Approved the FY 2009 budget allocation for state and local programs; and, Approved funding the Massachusetts Commission Against Discrimination Testers Project for FY 2009.

Madam Vice Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting in case there are any closed meeting agenda items.

ACTING VICE CHAIR GRIFFIN: Thank you, Ms. Wilson.

Do I hear a motion?

COMMISSIONER BARKER: So moved.

ACTING VICE CHAIR GRIFFIN: Is there a second?

ACTING CHAIRMAN ISHIMARU: Second.

ACTING VICE CHAIR GRIFFIN: Is there any discussion?

(No audible response.)

ACTING VICE CHAIR GRIFFIN: Hearing none, all those in favor?

ALL: "Aye."

ACTING VICE CHAIR GRIFFIN: All those opposed?

(No audible response.)

ACTING VICE CHAIR GRIFFIN: The ayes have it. The motion is carried.

Thank you, Ms. Wilson.

We are here today to deliberate and vote on the Notice of Proposed Rulemaking for the Americans with Disabilities Act Amendments Act of 2008. To this end, we're going to now hear a presentation on the proposed regulation by our Associate Legal Counsel Peggy Mastroianni who is accompanied by Assistant Legal Counsel Christopher Kuczynski.

Would you please come on up and begin? Peggy, you'll go first.

MS. MASTROIANNI: Good morning, Acting Chairman, Acting Vice Chair, Commissioner Barker, members of the public and colleagues.

I'm Peggy Mastroianni, Associate Legal Counsel, and for the last year, I have had the privilege of working on this Proposed Rule and appendix implementing the ADA Amendments Act with two extraordinary attorneys in the Office of Legal Counsel -- Assistant Legal Counsel Chris Kuczynski, who is Director of the ADA Division, and Senior Attorney Advisor, Jeanne Goldberg.

Driving the development of the Rule from day one has been Congress' exhortation in the Act that the definition of disability should be construed in favor of broad coverage and should not demand extensive analysis.

After an earlier version of this Proposed Rule failed to get Commission approval last December, we 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 -- 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.

On April 28, 2009, we circulated a new draft to the Commission for a briefing period which was later extended. During this time, we discussed the content of the Proposed Rule with the Offices of the Commissioners. The Proposed Rule that you are considering today reflects some changes resulting from this briefing period.

I will now turn this over to Chris Kuczynski who will review the substance of the Proposed Rule and appendix in detail. Then we will both respond to your questions.

Finally, let me briefly note, that if the Commission approves this Notice of Proposed Rulemaking, it will then go to other federal agencies and to OMB for review, and then, only when that review is completed, will it be published in the Federal Register for notice and comment. Following the notice and comment process, a Final Rule will be developed for a final Commission vote and OMB review.

Thank you for the opportunity to speak to you today.

ACTING VICE CHAIR GRIFFIN: Thanks, Peggy. Chris?

MR. KUCZYNSKI: Good morning. I will describe the key provisions of the Notice of Proposed Rulemaking you're considering today.

Before describing the specific sections of the ADA regulation and interpretive guidance first published in 1991, and 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've made to 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' 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 Rule.

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 vs. Arline. It is this straightforward approach to coverage that the ADA Amendments Act and this Proposed Rule intend 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 in 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 the greatest specificity in the regulation itself will increase the likelihood that courts will defer to our interpretation of the law.

I'll now turn to specific section by section discussion of the Proposed Rule beginning with Section 1630.2(i), the definition of major life activities.

As you know, the ADA Amendments Act retains the same basic three-part definition of the term 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 nonexhaustive 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, et cetera. 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 in the Proposed Rule 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 that's taken from the interpretive guidance accompanying the 1991 regulation. It was in the Appendix to that regulation -- it's now part of the 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 functions. Cancer affects normal cell growth. Diabetes affects functions of the endocrine system that is the 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.

Now I'll turn to Section 1630.2(j), the definition of "substantially limits". 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 1 regulation that defines substantially limits as significantly restricted - both express 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 usually fall short of this standard -- the substantially limits standard. Section 1630.2(j)(8) of the Proposed Rule includes language indicating that temporary nonchronic impairments of short duration with little 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. 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 itself. That is 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' rejection of the decision in the Toyota case, 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 20-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, for example, because of a limited visual field and/or a lack of depth perception, need not also 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 -- that is the production of 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 the 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 an 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.

Consistent with the ADA Amendments Act's plain language, Section 1630.2(j)(3) of 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: 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; use of assistive technology; reasonable accommodations or auxiliary aides and services; or learned behavioral or adaptive neurological modifications. To this nonexhaustive 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 eyeglasses 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.

Also 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.

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 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 Section (j)(5) consistently will meet the definition of disability. The Amendments Act report of the House Committee on the Judiciary at page six 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 lessens 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 assessment 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 that is a significant risk of substantial harm, and in an intentional discrimination case, whether an employer took a prohibited action on the basis of the disability or for some legitimate nondiscriminatory reason.

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 examples of 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 certain forms of depression other than major depression, and hyperthyroidism. The list of impairments, of course, is intended to be nonexhaustive.

I will not discuss the examples in detail. But I 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 therefore of whether an individual has a disability does not depend on what an individual is able to do in spite of an impairment. It depends on what the individual is substantially limited in doing.

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 under produce in some harmful fashion.

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 necessarily exist outside the workplace. For example, someone who is not substantially limited in standing or lifting might be substantially limited in working in jobs that require standing for extended periods of time such as 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 Amendments Act.

The concept of a type of work replaces the concept 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, that is, 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 standard 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' clearly expressed intent in the ADA Amendments Act, the focus in ADA cases should be on whether discrimination occurred and not on whether an individual meets the definition of a disability. The statistical analysis that some courts have required in working cases is unnecessary to show that an individual is substantially limited in working.

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 Commissions' longstanding position that a record of a disability includes being misclassified as having had a substantially limiting impairment.

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 such as failure to hire, termination, et cetera, because of an impairment, regards the individual as having a disability unless the impairment that is the basis of the employer's action is transitory, that is, 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 that 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 clear that actions based on an impairment's symptoms or based on an individual's use of the mitigating measure, for example, 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 under the regarded as prong of the definition of disability, are not entitled to reasonable accommodation. A new subparagraph added to Section 1630.2(9) -- that's the section of reasonable accommodation -- says that reasonable accommodations are available to individuals covered under either the first or second prongs of the definition.

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. Section 1630.10 is the provision of the regulations on qualification standards.

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, usually will meet the regarded as definition of disability.

I want to mention just very briefly a few 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 guidelines.

Subparagraph (c)(4) says that the term disability shall be construed broadly. We have changed the term qualified individual with a disability throughout the regulation to qualified individual. This is the second of the less significant changes. And we've done that to Section 1630.2(m) because the Amendments Act eliminates the term, qualified individual with a disability in most places where it appears in Title 1.

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.

This concludes my summary of the Proposed Rule. I want to thank you very much for the opportunity to outline the provisions of the Rule. I'll answer any questions that you have.

ACTING VICE CHAIR GRIFFIN: Okay. Thank you very much.

Before we turn to opening statements and questions from us, Peggy or Chris, can you address the issue of whether the ADA Amendments Act will apply retroactively?

MS. MASTROIANNI: The majority of the -- overwhelming majority -- of the courts have said no, that it does not apply retroactively. ADA Amendments Act -- you can look at it in contrast to the Lilly Ledbetter Act in which there was a clear Congressional intent that it apply retroactively. As you recall, the Amendments Act was passed in September. And at that point Congress said it would only become effective in January.

It is a law that's indisputably restorative -- the ADA Amendments Act. But the Supreme Court has said that's not enough, you need a clear Congressional intent to make it retroactive. And that's not here.

ACTING VICE CHAIR GRIFFIN: Thank you.

I'll begin with opening statements and questions, and you'll hear from Chairman Ishimaru and then Commissioner Barker.

In 1964, Congress passed legislation actually making it illegal for employers to discriminate on the basis of race, color, sex, national origin and religion. People with disabilities were left unprotected when America took this giant step forward.

It was nine years later in 1973 that Congress passed the Rehabilitation Act finally extending protections against discrimination in employment to individuals with disabilities. But as we all know, that Act only applied to the federal government and entities that took federal money. That left millions of Americans still unprotected in the workplace.

People with disabilities waited another 17 years before Congress finally extended civil rights to all of us through the passage of the ADA. That great victory however was short lived. What we thought was a giant leap turned out to be a rather small step in the continuous struggle for equal protection under the law.

Since 1990, we have watched the courts chip away at what it means to be a person with a disability. Instead of focusing on whether the employers' actions were illegally motivated by the fact that their employee had a disability, the courts have spent the last 19 years forcing people with disabilities like epilepsy or diabetes or psychiatric disabilities to prove that they are in fact disabled or disabled enough to be covered under the law.

This long fight for civil rights for people with disabilities has now reached another milestone. Congress recognized the intent of the ADA was being misread, and that its goals were being compromised, and that action had to be taken. The purpose of the ADA Amendments Act is clear, straightforward, and these regulations reflect that.

Our Office of Legal Counsel, led by Peggy -- and as she said earlier, with an amazing dedicated staff, Chris Kuczynski and Jeanne Goldberg -- really have worked tirelessly since the passage, maybe, and have done an amazing job of -- I've watched it first hand, and I can attest to the fact that these folks are not only the experts most of you know them to be, but they continually strive to do a better job in writing regulations and making sure that the law is implemented the way that Congress intended.

These regulations will shift the focus of the courts away from further narrowing the definition of disability and put it back where Congress intended when the ADA was enacted in 1990. Courts should now focus on whether discrimination based on disability is actually occurring in the workplace. The protections afforded by the Amendments Act and these new regs are important really for all workers including our returning wounded warriors who certainly deserve the right to re-enter a workforce free of discrimination. Even for our veterans this has not been easy, especially those warriors with what we call invisible wounds.

I feel a profound sense of obligation and duty to ensure that the regs we put forth are really the best that they can be. I look forward to the comments we will get from all possible stakeholders. And as we know, that will first come from OMB and other agencies. I know that the comments will only serve to make these regulations stronger in the end. But for today, they should reflect our best thinking, and more importantly the clear intent of Congress. I'm proud to say that these regulations do exactly that.

And when we vote on these regulations as a final rule, or whoever votes on these regulations as a final rule, I believe people with disabilities can look forward to spending more time in the workplace and not in a courthouse.

I'd like to now turn to Acting Chair Ishimaru for his opening statement.

ACTING CHAIRMAN ISHIMARU: Well, thank you very much.

Let me associate myself with the Acting Vice Chair's statement. That was an excellent statement and excellent summary of how we got here.

I had the privilege back in 1990 to work on the original ADA in the Congress. And I must say that it's been quite a journey. It's hard to believe that 20 years ago this summer, we were beginning the work in the Congress of trying to give people with disabilities the same rights that others had in the civil rights arena. And it's been distressing over the past 20 years to see those rights whittled away. And I certainly was very pleased last year when Congress passed the ADA Amendments Act to try once again to give coverage to people with disabilities so we'd spend less time fighting about who's disabled and getting to the fundamental question of whether discrimination has occurred.

I too want to thank the staff of the Office of Legal Counsel led by Peggy and Chris for their excellent job. It's been a long journey. And they've worked extremely hard in getting to this point. I think these regulations do embrace the spirit that Congress intended; that we focus on the discrimination so we can get to those important questions rather than focusing on whether someone has a disability or not.

I know there was a lot of work put in by an unprecedented coalition of both disability advocates and representatives from the business community. I think and hope that the regulations that we are proposing fulfill the expectations of the coalition to shift the focus from the narrow definition of disability to analyze whether discrimination has occurred.

I also think that we did a good job in these regulations in providing real-life examples that will guide persons through this. Quite often regulations are criticized and the threat of federal government issues them because they're not helpful. These regulations should be helpful. They should give the guidance that's needed. I'm looking forward to getting the comments back first from OMB and the other federal agencies, as well as from the public so we can come up with the best possible regulations that will be most useful in setting forth the intent of Congress.

And finally, let me thank the Acting Vice Chair for filling in today and chairing the meeting. I really appreciate her cooperation in helping us move this forward. She and her staff have put in a tremendous amount of work into this.

I also want to thank Antoinette Eates of my staff for all of her hard work and countless hours in getting us to this point.

Madam Vice Chair, thank you very much.

ACTING VICE CHAIR GRIFFIN: Thank you, Chairman Ishimaru.

Commissioner Barker?

COMMISSIONER BARKER: Good morning. I appreciate you all being here today. This is a very important topic that we're here to discuss, and it says a lot to me that so many people have taken the time out of their day to come and join us to hear the process and participate in the whole deliberative process with us.

We're here today to discuss and consider approval of release to OMB proposed regulations to implement and enforce ADA Amendments Act. The Acting Chair Ishimaru, Acting Vice Chair Griffin and I are all in agreement that the ADA needed to be amended to bring it back to what Congress intended when the Act was passed in 1990. Congress never intended that individuals who suffer from such diseases as epilepsy, multiple sclerosis or diabetes would be excluded from the protections of the ADA by court decisions, but this has occurred.

Now the Congress has clarified its intent on the issue of broad coverage by the words it carefully selected in the ADA Amendments Act and the reports of the Senate Managers, House Education Labor Committee and House Judiciary Committee. It falls on the EEOC to adjust the regulations to accurately reflect that intent.

The difficulty for us as an agency is that since we are not legislators and have no lawmaking authority, we are confined to making those changes in the regulations that correctly reflect Congressional intent. Even if they are concepts that we wish Congress had incorporated into the ADA Amendments Act, we cannot risk shifting the meaning of the words that Congress selected by gratuitously inserting or removing our own concepts unless there's authority to do so.

The ADA Amendments Act is a successful product of extensive bipartisan deliberation and negotiation by members of Congress and by representatives of the disability, the education and the business communities. Both political parties were in agreement that legislation was needed to bring the courts back to the original intent of the 1990 statute and give clear direction to the courts on how they should decide ADA cases. The goal of Congress was to instruct the courts on the intended broad coverage under the original ADA, but with as few changes to the statute as possible.

The end product -- the ADA Amendments Act -- represents long hours of Congressional hearings, meetings, discussion and careful negotiation. The final Act reflects a careful balancing of the interests and concerns of the disability, education and business communities. It was passed by overwhelming majorities in both the Senate and the House.

The ADA Amendments Act is a shining example of what Congress can accomplish when both parties agree to set aside their differences and reach across the aisle in order to address a wrong that needs to be corrected. Congress is to be applauded for putting party politics and differing ideologies aside and passing this very important piece of legislation, and particularly for incorporating the disability community and the business community into the deliberative process.

Congress clearly expressed the central purpose of the Act in these words: "The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this act to the maximum extent permitted by the terms of this Act," and added, "without extensive analysis." The role of the EEOC is to make any needed revisions to the regulations to reflect this Congressional intent.

The ADAAA legislative history clearly confirms that it was not Congress' intent to throw out the ADA and start afresh. Rather Congress was well aware of the extensive effort that had gone into passage of the ADA in 1990. As Senator Tom Harkin had pointed out in comments on the Senate floor in April of 2003, the ADA was passed only after "17 Congressional hearings, five committee mark-ups, 63 public forums across the country, 8,000 pages of transcripts, oral and written testimony from the Attorney General of the United States, Governors, State Attorneys General and legislators."

Keenly aware of the careful bipartisan effort involved in arriving at consensus on the original 1990 Act, Congress considered and rejected legislation that would have offered a new approach to the ADA, and elected instead to clarify the scope of coverage within the existing framework of the ADA. Congress also gave specific instructions to the EEOC to "revise that portion of its current regulations that defines the term substantially limits as significantly restricted." Congress found that the EEOC's use of the term significantly restricted to define substantially limited was inconsistent with Congressional intent by expressing too high a standard. Beyond that, however, language in the legislative history strongly suggests that Congress intended that the EEOC follow its lead and make as few changes as possible to the existing regulations.

In an effort to fully understand the changes that Congress directed, my staff and I, in addition to closely studying the ADAAA and legislative history, met with Senate and House staff members and key negotiators for the disability community and the business community. Based on what I believe was a careful and comprehensive review, it is my belief that the proposed revisions to the regulations that are before us today, have incorporated a number of changes that were not intended by Congress; and that, if left uncorrected, will upset the balance of interests that those who negotiated the wording of the Act were so careful to achieve.

The Acting Chairman, the Acting Vice Chairman and I are in total agreement with the clarifications and changes that Congress made to the ADA through the ADA Amendments Act. But we disagree as to how those changes to the ADA should be reflected in the regulations.

Acting Vice Chair Griffin and I have discussed our differing views on the changes that should be made to the regulations. And while I appreciate her willingness to listen to my concerns and for significant modifications that were made in response to some of my concerns, there's still important aspects of the proposed regulations that I cannot agree to. In light of the extensive bipartisan effort by members of Congress and the extensive effort by members of the disability and business communities in arriving at the final legislation, it saddens me that I cannot join my fellow Commissioners in voting in favor of approving releasing the proposed NPRM to OMB. I regret that it is my belief that the proposed NPRM offers changes that were not intended by Congress, and for which there is no legislative history to support. These proposed changes depart in a fundamental way from the basic concept of the ADA. The disability is determined on the basis of an individualized assessment, and not categorically.

For example, two concepts removed from the regulations. The first concept is condition, manner and duration, an important analytical tool for determining whether an individual is substantially limited in a major life activity and thus entitled to reasonable accommodations under prongs one or two. The second concept is class of jobs or broad range of jobs, an important concept for determining whether an individual is substantially limited in a major life activity of working.

Had Congress decided against continued use of either of these fundamental concepts, it would have instructed the EEOC to remove them from the regulations, just as Congress instructed us to remove the words "significantly restricted" from the regulations. My concern is that as Congress did not instruct that the concepts be removed or replaced, the courts will reject our removal of them and replacement of them with concepts of our own as arbitrary and capricious.

Notwithstanding Office of Legal Counsel's arguments to the contrary, I also believe that the proposed revisions of Subsection (j)(5) of the proposed NPRM ignore Congress' express intent to continue to determine eligibility for reasonable accommodations based on an individualized functional assessment.

My strongest concern, however, is that in removing language that Congress intentionally did not remove, and offering an entirely new approach the Congress did not elect to take, we have failed those who have worked so long and hard to negotiate the careful limited changes to the ADA.

There is much in the proposed regulations that I do support. My concerns focus on the treatment of substantially limited. And while I certainly appreciate the efforts of the Office of Legal Counsel and their work in drafting the proposed regulations, I respectfully suggest that the draft needs considerable additional work in order to be true to Congressional intent.

We have shared with the Office of Legal Counsel and the Acting Vice Chair my specific objections to the proposed NPRM. And I ask that the entirety of my comments be incorporated into the record of this meeting.

Thank you.

ACTING VICE CHAIR GRIFFIN: Thank you, Commissioner Barker.

Acting Chair Ishimaru, would you like to make any comments, further comments, or do you have any questions?

ACTING CHAIRMAN ISHIMARU: I don't have anything at this point. Thank you.

ACTING VICE CHAIR GRIFFIN: Okay. I would actually just like Chris and/or Peggy to respond to the issue around condition, manner and duration. I think one of the things that we saw were some inconsistencies in the legislative history -- Congress asking us to broaden the language. And I don't think we were restricted specifically to only the things that they asked us to do. I think they gave us more of a license to do a broad look at how we make the language more broad, if I can be so broad as to repeat myself.

But Chris, can you just talk about that a little bit?

MR. KUCZYNSKI: Sure. There is a provision of the Amendments Act that gives EEOC the authority to issue regulations implementing the Act. And although there is -- and this was done in response to the decision in the Sutton case, which said that EEOC, the Department of Justice and the Department of Transportation didn't have the authority to interpret the definition of disability because it was in this list of definitions of general applicability across all titles -- that applied across all titles rather than specifically in Title 1.

So one of the things the Amendments Act does is include a specific provision in addition to the provision that talks about the expectation that we'll change the definition or the standard of substantially limits means significantly restricted. There is another provision that simply empowers the agencies -- EEOC, DOJ, and DOT -- to implement those portions -- all of the portions of the ADA Amendments Act.

So with respect to the issue of condition, manner or duration, I think again as I said at the outset of my remarks, one of the things that really animated the drafting of the Proposed Rule was Congress' exhortation that the definition should be construed broadly and its reliance in so stating on the Rehabilitation Act and case law decided under the Rehabilitation Act. And in looking back at the Rehabilitation Act, although it's true that the concepts of condition, manner and duration appeared in I think the legislative history of the original ADA, when you go back and look at the Rehabilitation Act case law on disability, first of all you see very little analysis of disability at all, and no references we were able to determine to concepts of condition, manner and duration. And we believe that consistent with Congress' directive that really that what we do track the approach taken in the Rehabilitation Act, we thought that inclusion of the terms would lend an intensity of focus.

We talked about this in the interpretive guidance. Congress did not want an intensity of focus on the definition of disability. Give a judge or a lawyer a three-part definition or three terms and they will obviously go through the analysis under each one. And we believe that consistent with the Rehabilitation Act, the fact that the term was not used and the exhortation to take the emphasis off the definition of disability and this intense focus on the definition, we thought that elimination of the concepts in favor of examples that illustrate the points was more useful.

ACTING VICE CHAIR GRIFFIN: I also thought that class of -- when we get into the working issue -- the class of jobs or range of jobs -- what we heard over and over was how confusing this was even to, I think Justice Breyer in his earlier position on the First Circuit that said he found that whole concept so confusing.

So I think what we were attempting to do here was really simplify it and get back to again the Rehab Act which talks about types of jobs, and doesn't require extensive analysis, which again was what I think Congress and the Amendments Act was saying. We're not looking for extensive analysis here. And in those cases -- the working cases -- it was extensive analysis, extensive expert testimony and statistical analysis that I think Congress clearly said we don't want you to focus on that.

COMMISSIONER BARKER: Let me just respond to that. And Chris, I certainly am not the expert on the ADA as you are. And so all I can do is read and study and try to put my best effort into it.

But I certainly do not question the EEOC's specific authority to amend the regulations. I mean, Congress directed us to amend the regulations in the ADA Amendments Act. And we are the enforcing authority for the ADA, and as we are for the ADA Amendments Act.

My concern is that we get it right. And what I'm focused on is there was so much effort that went into this Act. And this was a really unusual thing for Congress, both with the original ADA and with the Amendments Act that Congress made such an effort to bring in experts from the disability community, the business community and the education community to listen to all of their concerns and had them work very hard for months and months and months to negotiate every word that wound up in that Act. And they discussed the wording of the regulations, and they didn't like our significantly restricted. And they said get it out.

But you know what they also did? In the Senate Manager's report -- the final Senate Manager's report -- they discussed condition, manner and duration, and they talked about use of those terms -- that analytical tool -- and talked about it with approval. So on the one hand; I think we have to be very careful in exercising our authority to promulgate regulations -- that we correctly follow Congressional intent. And on the other hand, I think in this particular case, we have to be very cognizant of the fact that every single word that was taken out or that was left in was carefully negotiated.

So while I don't for a minute question the intent of Office of Legal Counsel in drafting the regulations that you believe are appropriate, I do think that with this particular Act that if Congress had intended for us to get in there and mess with other portions of the regs, they would have told us to do that. And I think that as soon as we get in there and we start changing things that weren't specifically required to be changed that we're messing with all the negotiations that were carefully balanced. And that's my fundamental concern. And where I see that come out is with Subsection (j) in the discussions of substantially limited.

But here again, reasonable people can differ. And that's what we're here to discuss.

I did have one question though. Chris, under that Subsection (j)(5), I didn't hear you list autism. Is that still in there as --?

MR. KUCZYNSKI: Yes, it is. Yes, Commissioner, it is.

COMMISSIONER BARKER: That is included in one of the impairments that "consistently meet the definition?" Okay.

MR. KUCZYNSKI: Yes. It's in my written statement.

COMMISSIONER BARKER: All right. I just wanted to clarify that.

ACTING VICE CHAIR GRIFFIN: He just missed it. Is that right? So.

It's funny that you asked that because that was going to be my next question. I just turned to that to say -- to revive that issue.

All right, any further questions, Acting Chairman Ishimaru?

ACTING CHAIRMAN ISHIMARU: No, thank you.

ACTING VICE CHAIR GRIFFIN: Any other comments, statements?

(No audible response.)

ACTING VICE CHAIR GRIFFIN: Okay. Well, I guess we'd like to vote on this.

Is there a motion to approve the Notice of Proposed Rulemaking for the Americans With Disabilities Act Amendments Act of 2008?

ACTING CHAIRMAN ISHIMARU: So moved.

ACTING VICE CHAIR GRIFFIN: Is there a second?

I'll second that.

Is there any discussion?

ACTING CHAIRMAN ISHIMARU: Madam Vice Chair, I just want to commend you on your leadership consistently on these issues over the years. Your work on this has been extremely helpful to the Commission in getting us to this point today. And I just want to make that point clear before we vote. I want to thank you for all of your hard efforts.

ACTING VICE CHAIR GRIFFIN: I thank you. But I think we all know that it's clearly the staff here that works the hardest. And again, the Office of Legal Counsel did a tremendous job.

My staff, Ken Morse -- and Ken's actually been here since the original ADA was passed and some of you folks have too, and has really seen the full process of what's happened from the very beginning of that law to now. So it's been interesting working with Ken and getting his insight as we went through this process.

JoLinda Johnson on my staff, and certainly as you mentioned earlier, Stuart, Antoinette Eates in your office has been just instrumental in getting this forward as far as it's been as well.

And I want to thank Commissioner Barker and her staff. We've had a good working relationship through this. And as she said, we may disagree here, but we really did, working together made the document better.

COMMISSIONER BARKER: And I want to join Acting Chairman Ishimaru in commending Acting Vice Chairman. That's a lot of words.

ACTING VICE CHAIR GRIFFIN: I know. This acting stuff and all the words. Commissioner is just easy.

COMMISSIONER BARKER: Chris is even nicer.

But she has certainly been a leader in efforts to support the rights of individuals with disabilities. And Chris' unending energy and she's a tough opponent to come up against. I mean, she and I have had very strong differing opinions on a number of ADA cases that have come before us. And she has twisted my arm on a number of occasions. So I listen to her and I respect her opinion. And we've had some very interesting and invaluable intellectual exchanges on our views on this. And I appreciate it.

ACTING VICE CHAIR GRIFFIN: Well, that's a nice discussion to have before a vote. So --

(LAUGHTER.)

ACTING VICE CHAIR GRIFFIN: Usually we're still trying to convince each other. But given that, we've had our discussion. I'd like to actually call for the vote.

So all those Commissioners in favor of voting for these regulations please say aye.

ACTING CHAIRMAN ISHIMARU: Aye.

ACTING VICE CHAIR GRIFFIN: Aye.

Opposed?

COMMISSIONER BARKER: Nay.

ACTING VICE CHAIR GRIFFIN: Okay. So the result of the vote is two ayes, one opposed. And the vote is recorded on the motion.

Thank you, Ms. Wilson. Thank you, everybody for coming today.

There being no further business today, do I hear a motion to adjourn the meeting?

COMMISSIONER BARKER: So moved.

ACTING VICE CHAIR GRIFFIN: Second?

ACTING CHAIRMAN ISHIMARU: Second.

ACTING VICE CHAIR GRIFFIN: All in favor?

ALL: "Aye."

ACTING VICE CHAIR GRIFFIN: Opposed?

(No audible response.)

ACTING VICE CHAIR GRIFFIN: All right. The ayes have it. The meeting is adjourned.

Thank you, everybody for coming, and we look forward to hearing from all of you as this process continues. Thank you.

(Whereupon, at 11:37 a.m., the meeting was adjourned.)