The ADA Amendments Act Definition of Disability: Final EEOC Regulations

The ADA Amendments Act Definition of

Disability: Final EEOC Regulations

name redacted

Legislative Attorney

April 1, 2011

Congressional Research Service

7-....

www.crs.gov

R41757

CRS Report for Congress

Prepared for Members and Committees of Congress

The ADA Amendments Act Definition of Disability: Final EEOC Regulations

Summary

The ADA Amendment Act (ADAAA), P.L. 110-325, was enacted in 2008 to amend the

Americans with Disabilities Act (ADA) definition of disability. On March 25, 2011, the Equal

Employment Opportunity Commission (EEOC) issued final regulations implementing the

ADAAA. The final regulations track the statutory language of the ADA but also provide several

clarifying interpretations. Several of the major regulatory interpretations are, including the

operation of major bodily functions in the definition of major life activities; adding rules of

construction for when an impairment substantially limits a major life activity and providing

examples of impairments that will most often be found to substantially limit a major life activity;

interpreting the coverage of transitory impairments; interpreting the use of mitigating measures;

and interpreting the “regarded as” prong of the definition.

Congressional Research Service

The ADA Amendments Act Definition of Disability: Final EEOC Regulations

Contents

Introduction ................................................................................................................................1

Statutory Provisions ....................................................................................................................1

Final EEOC Regulations .............................................................................................................2

Overview ..............................................................................................................................2

Major Life Activities .............................................................................................................3

Substantially Limits a Major Life Activity.............................................................................4

Transitory Impairments .........................................................................................................4

Mitigating Measures .............................................................................................................4

Regarded As Having an Impairment ......................................................................................5

Contacts

Author Contact Information ........................................................................................................5

Congressional Research Service

The ADA Amendments Act Definition of Disability: Final EEOC Regulations

Introduction

The ADA Amendment Act (ADAAA), P.L. 110-325, 1 was enacted in 2008 to amend the

Americans with Disabilities Act (ADA). The Americans with Disabilities Act (ADA)2 is a broad

civil rights act prohibiting discrimination against individuals with disabilities. As stated in the act,

its purpose is “to provide a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.”3 The ADAAA reiterated this purpose, and

also emphasized that it was “reinstating a broad scope of protection” for individuals with

disabilities.4

The threshold issue in any ADA case is whether the individual alleging discrimination is an

individual with a disability. Several Supreme Court decisions interpreted the definition of

disability, generally limiting its application. 5 Congress responded to these decisions by enacting

the ADA Amendments Act, P.L. 110-325, which rejects the Supreme Court and lower court

interpretations and amends the ADA to provide broader coverage. Two of the major changes

made by the ADA Amendments Act are to expand the current interpretation of when an

impairment substantially limits a major life activity (rejecting the Supreme Court’s interpretation

in Toyota), and to require that the determination of whether an impairment substantially limits a

major life activity must be made without regard to the use of mitigating measures (rejecting the

Supreme Court’s decisions in Sutton, Murphy, and Kirkingburg). On March 25, 2011, the Equal

Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA

Amendments Act.6

Statutory Provisions

The ADA Amendments Act defines the term disability with respect to an individual as “(A) a

physical or mental impairment that substantially limits one or more of the major life activities of

such individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment (as described in paragraph (3)).”7 Paragraph (3) discusses the “regarded as” prong of

the definition and provides that an individual is “regarded as” having a disability regardless of

whether the impairment limits or is perceived to limit a major life activity, and that the “regarded

as” prong does not apply to impairments that are transitory and minor. 8 Although this is

essentially the same statutory language as was in the original ADA, P.L. 110-325 contains new

rules of construction regarding the definition of disability, which provide that

1

For a more detailed discussion of the statute see CRS Report RL34691, The ADA Amendments Act: P.L. 110-325, by

(name redacted).

2

42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-921, The Americans with

Disabilities Act (ADA): Statutory Language and Recent Issues, by (name redacted).

3

42 U.S.C. §12101(b)(1).

4

20 U.S.C. §12101 note.

5

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999);

Kirkingburg v. Albertson’s Inc., 527 U.S. 555 (1999); Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002).

6

76 FED. REG. 16978 (March 25, 2011).

7

P.L. 110-325, §4(a), amending 42 U.S.C. §12102(1).

8

P.L. 110-325, §3(3), 42 U.S.C. §12102(3).

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The ADA Amendments Act Definition of Disability: Final EEOC Regulations

•

the definition of disability shall be construed in favor of broad coverage to the

maximum extent permitted by the terms of the act;

•

the term “substantially limits” shall be interpreted consistently with the findings

and purposes of the ADA Amendments Act;

•

an impairment that substantially limits one major life activity need not limit other

major life activities to be considered a disability;

•

an impairment that is episodic or in remission is a disability if it would have

substantially limited a major life activity when active; and

•

the determination of whether an impairment substantially limits a major life

activity shall be made without regard to the ameliorative effects of mitigating

measures, except that the ameliorative effects of ordinary eyeglasses or contact

lenses shall be considered.9

The findings of the ADA Amendments Act include statements indicating a determination that the

Supreme Court decisions in Sutton and Toyota as well as lower court cases had narrowed and

limited the ADA from what was originally intended by Congress. P.L. 110-325 specifically states

that the then-current Equal Employment Opportunity Commission (EEOC) regulations defining

the term “substantially limits” as “significantly restricted” are “inconsistent with congressional

intent, by expressing too high a standard.”10

Final EEOC Regulations

Overview

The EEOC issued final ADAAA regulations on March 25, 2011, which will become effective on

May 24, 2011.11 Proposed regulations were published in the Federal Register on September 23,

2009,12 and the EEOC received over 600 comments and held a series of “Town Hall Listening

Sessions.”13 In general, the final regulations streamlined the organization of the proposed

regulations, and moved many examples from the regulation to the appendix. The EEOC notes that

the appendix will be published in the Code of Federal Regulations (CFR), and “will continue to

represent the Commission’s interpretation of the issues discussed in the regulations, and the

Commission will be guided by it when resolving charges of employment discrimination under the

ADA.”14 The final regulations track the statutory language of the ADA but also provide several

clarifying interpretations. Several of the major regulatory interpretations are as follows:

•

including the operation of major bodily functions in the definition of major life

activities;

9

P.L. 110-325, §3(4), 42 U.S.C. §12102(4). Low vision devices are not included in the ordinary eyeglasses and contact

lens exception.

10

P.L. 110-325, §2(a)(8); 42 U.S.C. §12101 note.

11

76 FED. REG. 16978 (March 25, 2011).

12

74 FED. REG. 48431 (September 23, 2009).

13

76 FED. REG. 16979 (March 25, 2011).

14

Id.

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The ADA Amendments Act Definition of Disability: Final EEOC Regulations

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adding rules of construction for when an impairment substantially limits a major

life activity, and providing examples of impairments that will most often be

found to substantially limit a major life activity;

•

interpreting the coverage of transitory impairments;

•

interpreting the use of mitigating measures; and

•

interpreting the “regarded as” prong of the definition.

Major Life Activities

The first prong of the statutory definition of disability, referred to by EEOC as “actual disability,”

provides that an individual with “a physical or mental impairment that substantially limits one or

more of the major life activities of such individual”15 is an individual with a disability. The final

regulations provide a list of examples of major life activities. 16 In addition to those listed in the

statute (caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working),17 the EEOC includes sitting, reaching, and interacting with

others.18

Major life activities also include major bodily functions.19 In addition to the statutory examples

(functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological,

brain, respiratory, circulatory, endocrine, and reproductive functions), the EEOC includes special

sense organs, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal. 20 The final

regulations also provide that the operation of a major bodily function includes the operation of an

individual organ within a body system. 21

The EEOC emphasizes that the ADAAA requires an individualized assessment but notes that

because of the statute’s requirement for broad coverage, some impairments will almost always be

determined to be a disability. The final regulations list impairments that fall within this category.

They include deafness, blindness, an intellectual disability, missing limbs or mobility

impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy,

HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar

disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.22 In

addition, the EEOC provides that the focus when considering whether an activity is a major life

activity should be on “how a major life is substantially limited, and not on what outcomes an

individual can achieve.”23 For example, the EEOC noted that an individual with a learning

15

42 U.S.C. §12102(1).

The EEOC specifically states that these examples are not limiting.

17

42 U.S.C. §12102(2)(A).

18

New 29 C.F.R. §1630.2(i)(1)(i); 76 FED. REG. 17000 (March 25, 2011).

19

42 U.S.C. §12102(2)(B).

20

New 29 C.F.R. §1630.2(i)(1)(ii); 76 FED. REG. 17000 (March 25, 2011).

21

Id.

22

New 29 C.F.R. §1630.2(j)(3)(iii); 76 FED. REG. 17001 (March 25, 2011).

23

New 29 C.F.R. §1630.2(j)(4)(iii); 76 FED. REG. 17001 (March 25, 2011).

16

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The ADA Amendments Act Definition of Disability: Final EEOC Regulations

disability my achieve a high level of academic success but may be substantially limited in the

major life activity of learning.24

Substantially Limits a Major Life Activity

The final regulations provide rules of construction to assist in determining whether an impairment

substantially limits an individual in a major life activity.25 Generally, the regulations provide that

not every impairment is a disability but an impairment does not have to prevent or severely limit

a major life activity to be considered substantially limiting. The term substantially limits is to be

broadly construed to provide expansive coverage, 26 and requires an individualized

determination.27

Transitory Impairments

The ADAAA specifically provides that an impairment that is episodic or in remission is a

disability if it would substantially limit a major life activity when active.28 In its appendix to the

regulations, the EEOC states that “[t]he fact that the periods during which an episodic

impairments is active and substantially limits a major life activity may be brief or occur

infrequently is no longer relevant to determining whether an impairment substantially limits a

major life activity.”29 For example, the EEOC notes that an individual with post-traumatic stress

disorder who has intermittent flashbacks is substantially limited in brain function and thinking.30

Mitigating Measures

A mitigating measure, for example, a wheelchair or medication, eliminates or reduces the

symptoms or impact of an impairment. The ADAAA provided that when determining when an

impairment substantially limits a major life activity, the ameliorative effects of mitigating

measures shall not be used.31 However, ordinary eyeglasses and contact lenses may be

considered. 32 The EEOC final regulations track the statutory language, and also provide that the

negative side effects of a mitigating measure may be taken into account in determining whether

an individual is an individual with a disability. 33 Although the EEOC would not allow a covered

entity to require the use of a mitigating measure, if an individual does not use a mitigating

measure, this may affect whether an individual is qualified for a job or poses a direct threat.34

24

Id.

New 29 C.F.R. §1630.2(j)(1); 76 FED. REG. 17000 (March 25, 2011).

26

New 29 C.F.R. §1630.2(j)(1)(i); 76 FED. REG. 17000 (March 25, 2011).

27

New 29 C.F.R. §1630.2(j)(1)(iv); 76 FED. REG. 17000 (March 25, 2011).

28

42 U.S.C. §12102(4)(D).

29

76 FED. REG. 17011 (March 25, 2011).

30

Id.

31

42 U.S.C. §12102(4)(E).

32

Id.

33

New 29 C.F.R. §1630.2(j)(4)(ii); 76 FED. REG. 17001 (March 25, 2011).

34

76 FED. REG. 17010 (March 25, 2011).

25

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The ADA Amendments Act Definition of Disability: Final EEOC Regulations

Regarded As Having an Impairment

The third prong of the statutory definition of disability is “being regarded as having an

impairment.”35 The ADAAA further describes being regarded as having an impairment by stating

that an individual meets this prong of the definition “if the individual establishes that he or she

has been subjected to an action prohibited under this Act because of an actual or perceived

physical or mental impairment whether or not the impairment limits or is perceived to limit a

major life activity.”36 The statute also provides that the “regarded as” prong does not apply to

transitory or minor impairments, and a transitory impairment is defined as an impairment with an

actual or expected duration of six months or less.37

The EEOC final regulations echo the statutory language, and encourage the use of the “regarded

as” prong when reasonable accommodation is not at issue. 38 The EEOC emphasizes that even if

an individual is regarded as having a disability, there is no violation of the ADA unless a covered

entity takes a prohibited action, such as not hiring a qualified individual because he or she is

regarded as having a disability.39 A covered entity may challenge a claim under the “regarded as”

prong by showing that the impairment is both transitory and minor,40 or by showing that the

individual is not qualified or would pose a direct threat. However, it should be noted that the

defense that an impairment is transitory and minor is only available under the “regarded as”

prong. The rules of construction discussed previously concerning the first or actual prong

specifically state that the effects of an impairment lasting fewer than six months can be

substantially limiting. 41

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

This report was initially authored by (name redacted)

35

42 U.S.C. §12102(1)(C).

42 U.S.C. §12102(3)(A).

37

42 U.S.C. §12102(3)(B).

38

New 29 C.F.R. §1630.2(g)(3); 76 FED. REG. 17000 (March 25, 2011).

39

New 29 C.F.R. §1630.2(l); 76 FED. REG. 17002 (March 25, 2011).

40

New 29 C.F.R. §1630.15(f); 76 FED. REG. 17003 (March 25, 2011).

41

New 29 C.F.R. §1630.2(j)(1)(ix); 76 FED. REG. 17000 (March 25, 2011).

36

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