COMMISSION APPROVES PROPOSED ADA REGULATIONS FOR PUBLIC COMMENT

New Regulations Conform to Changes Made by ADA Amendments Act of 2008

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today approved a Notice of Proposed Rulemaking (NPRM) revising its regulations to provide that an individual seeking protection under the Americans with Disabilities Act (ADA) establish that he or she has a disability consistent with the original, expansive intent of Congress when it enacted the ADA in 1990.  The NPRM, approved by 2-1 vote, carries a 60-day period for public comment.

The NPRM makes several significant changes to the definition of the term "disability" necessitated by enactment of the ADA Amendments Act of 2008.  The NPRM will be available from the Commission's website, www.eeoc.gov, along with a question-and-answer guide about the proposal and instructions for submitting public comments.

"Today's Commission action marks a key step in implementing the landmark Amendments Act, which will smooth the road for those trying to establish disability under the ADA," said Acting EEOC Chairman Stuart J. Ishimaru.  "The Commission acted following careful and thorough deliberations, and we look forward to reviewing any and all public comments before issuing our final regulation."

Acting EEOC Vice Chair Christine M. Griffin said, "Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken.  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."

The Americans with Disabilities Act (ADA), an antidiscrimination statute, 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 ADA Amendments Act, which went into effect Jan. 1, 2009, states that Congress expects the EEOC to revise its regulations to conform to changes made by the Act, and expressly authorizes the EEOC to do so.  The new law rejected the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations that Congress believed construed the definition of "disability" too narrowly, preventing individuals with impairments such as cancer, diabetes, epilepsy, multiple sclerosis, muscular dystrophy, post-traumatic stress disorder, and bipolar disorder from bringing discrimination claims.  The ADA Amendments Act (ADAAA) and the proposed rule make it easier for an individual alleging employment discrimination based on disability to establish that he or she meets the ADA's definition of "disability." The ADA Amendments Act also modifies the Rehabilitation Act of 1973, which prohibits employment discrimination in the federal workforce on the basis of disability.

The EEOC voted June 17 to adopt the rules changes, which then went to the Office of Management and Budget for review, and to federal agencies.

Consistent with the ADAAA, the NPRM emphasizes that the definition of disability -- an impairment that poses a substantial limitation in a major life activity -- must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis; that major life activities include "major bodily functions"; that mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and that impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would "substantially limit" major life activities when active.  The regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA's new standard for determining whether someone is "regarded as" having a disability.

The 60-day public comment period on the proposed rule-making will officially commence upon publication of the NPRM in the Federal Register, which is expected to be published the week of September 21, 2009.  The EEOC encourages the public to offer its views and suggestions.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.