Sep 29, 2009

Proposed ADA Regulations Take a New Approach

In the ADA Amendments Act, which went into effect at the beginning of this year, Congress told the Equal Employment Opportunities Commission (EEOC) that it had defined the term "substantially limits" too narrowly, in a way that inappropriately restricted the number of people protected by the ADA. Last week, the EEOC responded by issuing proposed regulations that represent a significant departure from the way the ADA has been interpreted by the agency and by courts. Here are a few changes I found interesting: 

List of disabilities. Courts -- and the EEOC -- have tended not to categorize a particular impairment as a disability, instead looking at the particular effect the impairment has had on the particular person in question. In the proposed regs, the EEOC has taken a very different approach: It provides a nonexhaustive list of impairments "that will consistently meet" the definition of disability, including deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments that require use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. The regs still nod to the need for an individualized assessment, but say it can be conducted "quickly and easily" in the case of these impairments.

"Substantially limits" redefined. Like the ADAAA, the proposed regs explicitly disavow the test created by Justice O'Connor in Toyota v. Williams, which held that someone is substantially limited only if he or she is unable to perform activities of central importance to daily life. Instead, the regs state that this term should be construed in favor of broad coverage, and that a substantial limit in one activity is sufficient. The regs also say that factfinders should use their common sense when determining whether someone is substantially limited in a major life activity as compared to the general population; scientific or medical evidence won't necessarily be required.

Working as a major life activity. The proposed regs make it easier for employees to show that they are substantially limited in the major life activity of working. Previously, employees had to show that they were unable to perform a class or broad range of jobs -- and the Supreme Court had expressed doubt as to whether working even counts as a major life activity. In the proposed regs, the EEOC makes clear that working is a major life activity, and that an employee has met this standard if he or she is substantially limited in performing or meeting the qualifications for the job he or she has held or for jobs with similar qualifications or requirements. It doesn't matter that the employee could find work elsewhere, could perform jobs with different requirements, or could perform the job with a reasonable accom

To learn more about the ADA Amendments Act, and all the employment laws that every employer and HR pro needs to know, see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).