On March 24, 2011, the Equal Employment Opportunity Commission (the “EEOC”) issued final regulations that interpret the Americans with Disabilities Act Amendments Act (the “ADAAA”). In issuing the regulations, the EEOC’s goal was “to implement fully the requirements of the ADAAA’s broader definition of ‘disability.’” The final regulations were published in the Federal Register on March 25, 2011, and will take effect on May 24, 2011.
In enacting the ADAAA, which took effect on January 1, 2009, Congress explicitly articulated its intention to make it easier for individuals seeking protection under the Americans with Disabilities Act (the “ADA”) to establish that they have a disability within the meaning of the statute. In order to effectuate this goal, Congress overturned the Supreme Court precedent that it found had narrowed the scope of protection intended by Congress when it originally enacted the ADA in 1990. The statute also instructed the EEOC to revise certain portions of its then-existing ADA regulations to be consistent with the ADAAA.
The new regulations maintain the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. Consistent with the ADAAA’s mandate, however, the regulations implement significant changes regarding how those terms should be interpreted.
For example, the EEOC adopts “rules of construction” for use when determining if an individual is substantially limited in performing a major life activity. These rules of construction include: (i) the term “substantially limits” is to be construed broadly in favor of expansive coverage; (ii) an impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting; (iii) the determination of whether an impairment substantially limits a major life activity requires an individualized assessment and is to be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids (with the exception of ordinary eyeglasses or contact lenses); (iv) this individualized assessment should not require extensive analysis and will not ordinarily require scientific, medical, or statistical evidence; (v) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (vi) there is no durational minimum required for an impairment to be considered substantially limiting.
The regulations also make it easier for individuals to establish coverage under the “regarded as” prong of the definition of disability. Indeed, the “regarded as” prong now prohibits discrimination based on the employer’s alleged perception of a mental or physical impairment, even where that impairment is not perceived as an actual disability. The regulations confirm, however, that the employer is under no duty to provide reasonable accommodations to those “regarded as” having a disability.
Finally, the regulations somewhat controversially lists various conditions that, “given their inherent nature,” will meet the definition of disability “in virtually all cases,” notwithstanding the ADA’s rejection of the notion of a per se disability. Included as examples of such conditions are: deafness, blindness, intellectual disability (formerly mental retardation), mobility impairment requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
The ADAAA has already had a material impact on the number of ADA claims brought against employers – the EEOC reports that it received seventeen percent more ADA charges in 2010 than in 2009. By explaining and clarifying the ADAAA’s expanded definition of disability, these regulations are likely to result in a further increase in ADA claims brought against employers.