After months of review of public comment, the U.S. Equal Employment Opportunity Commission (EEOC)’s Final Rules implementing the Americans with Disabilities Amendments Act of 2008 (ADAAA) were published today. These regulations will become effective on May 24, 2011, and their impact will be felt in employers’ workplaces and in courtrooms throughout the country. The regulations will provide guidance to employers seeking to provide accommodations to disabled workers. The regulations are expressly designed to streamline the litigation process to focus on the central issue of discrimination, not disability.

An individual still must prove that he or she is a qualified individual with a disability who can perform, with or without reasonable accommodation, the essential functions of the specific employment position without creating undue hardship for the employer or a direct threat to oneself or others. The burdens of proof and the definitions of the terms “qualified,” “reasonable accommodation,” “undue hardship,” and “direct threat” remain virtually unchanged. Indeed, the definition of “disability” remains unchanged. Under the Americans with Disabilities Act (ADA), a “disability” includes: i) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; ii) a record of such an impairment; and iii) being regarded as having such an impairment. The interpretative tools for determining whether one qualifies as disabled under the ADAAA have changed profoundly.

In the past, the analysis of claims of disability focused on the threshold issue of whether an individual was a qualified individual with a disability. Based on decisions of the Supreme Court and other courts, many disabled claimants were denied the opportunity to demonstrate that they were, indeed, qualified and, in turn, had been subjected to discrimination. While the 2008 amendments did not change the requirement of an individualized assessment of disability sought by employer groups, the new regulations announce a series of rules of construction to implement the ADAAA’s mandate of broad coverage for persons with disabilities.

These rules of construction do not provide a definition of the term “substantially limits” as urged by disability groups, but require that the standard of “substantially limited” be construed broadly for expansive coverage. The regulations retained the individualized assessment to determine whether an individual impairment qualifies as a disability. Thus, issues of condition, manner and duration will be considered on a case-by-case basis in determining whether an individual is disabled and eligible for accommodation.

The analysis of whether an impairment “substantially limits” the ability of an individual to perform a major life activity:

  • continues to be an individualized assessment but interpreted and applied to require a degree of functional limitation that is lower than the prior judicial standards for substantial limitation
  • should not be a demanding standard or entail extensive analysis
  • requires comparison to the abilities of most people of the general population, noting that not every impairment will constitute a disability
  • does not require scientific or medical evidence, although such evidence is not prohibited, and
  • shall not consider mitigating measures or ameliorative devices except for ordinary glasses and contacts.

The new rules of construction also state that a disability may include an impairment:

  • in remission or episodic
  • impacting only one major life activity, or
  • transitory in nature.

The new regulations incorporate the major life activities listed in prior EEOC regulations including caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The ADAAA also includes a nonexclusive list of other activities such as standing, lifting, bending, eating, sleeping, reading, concentrating, thinking, communicating and the operation of any major bodily function. An impairment that substantially limits any of these major life activities is deemed a disability. Notably, the regulations also introduce a list of impairments “that should easily be concluded” as substantially limiting a major life activity, creating, in effect, is a per se list of disabilities. The ADAAA and its regulations virtually eliminate the possibility of any legal challenge to an individual’s impairment as a disability. The legal issue will be whether discrimination is the cause of the adverse employment action.

In an effort to prohibit stereotyping based on misperceptions of impairments or conditions, the new regulations have attempted to clarify those persons who are discriminated against on the basis of perceptions by employers and others that they are impaired. The regulations go on to state that an individual may qualify under the “regarded as” prong of the disability standard even if the employer can establish a defense to such action. In the interpretative guidance that is appended to the new regulations, the EEOC explains, for example, that some conditions such as pregnancy may not be an impairment but employers may regard pregnant women as having a disability and may treat them unfavorably.

In response to strong comments from employers and advocates for the disabled, the EEOC revised its preliminary rules retaining a number of the prior regulations. The EEOC has provided a number of examples in the preliminary rules, which indicates their intent going forward to enforce these regulations. The EEOC moved a number of examples from the final rule or placed them in the appendix as part of its detailed interpretative guidance on how the ADAAA has transformed the interpretation of the ADA. The EEOC indicated that it did not provide new definitions of terms such as “substantially limited”, in part to avoid protracted and contentious litigation. The EEOC also issued two documents, a Fact Sheet and a Question and Answers on the Final Rule Implementing the ADA Amendments of 2008, which clarify the EEOC’s position on the ADA.

The clear intent of the ADAAA and its interpretative regulations is to expand the coverage of the ADA to include more persons whose impairments impact their performance of major life activities, to simplify the analysis of disability claims, and to have employers and the courts focus on the central issues of reasonable accommodation and intentional discrimination.