Since we reported that the Department of Justice (“DOJ”) issued its proposed regulations last month concerning the definition of a “disability” under Titles II (applicable to state and local governments) and III (applicable to public accommodations) of the Americans with Disabilities Act (ADA), we have received a number of inquiries about the regulations’ impact and whether clients need to take any action.  We share here our initial thoughts.

Background and Key Provisions.  The proposed regulations implement the ADA Amendments Act of 2008 (ADAAA) which amended the Americans with Disabilities Act of 1990 (ADA).  Congress passed the ADAAA in response to several court decisions, including from the Supreme Court, that narrowly interpreted the definition of “disability.”   The point of the ADAAA, according to the DOJ, was to “mak[e] it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.”

In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations to implement the ADAAA’s requirements for Title I of the ADA, which prohibits disability discrimination by employers.  These DOJ proposed regulations will implement ADAAA requirements for Titles II and III of the ADA, which prohibit discrimination in state and local programs and by public accommodations, respectively.  DOJ’s proposed regulations closely track the statutory requirements of the ADAAA and the EEOC’s final regulations.

The ADAAA did not change the ADA’s definition of disability, which continues to be: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such impairment.  42 U.S.C. § 12102(1)(A)-(C).  However, the ADAAA directs the DOJ to promulgate new rules of construction to ensure broad interpretation of this definition.

Among other things, the proposed regulations specifically provide that:

  • In ADA Title II and III lawsuits, courts should not extensively analyze whether an individual’s impairment is a disability; instead, they must focus on whether entities covered under the ADA have complied with their statutory obligations.
  • In determining whether an impairment substantially limits a major life activity, courts must construe the term “substantially limits” broadly in favor of expansive coverage.
  • Mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability.”
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.​

Impact of Proposed Regulations.  The proposed rules will undoubtedly result in more people who are individuals with a “disability.”  This expanded coverage will likely result in more people requesting auxiliary aids and services and/or modifications to policies, practices and procedures from covered entities.  Interestingly, DOJ states in the preamble that the proposed regulations will only result in more people with learning disabilities and attention deficit disorder (ADD) being covered by the ADA.  The DOJ also claims that the only entities that will experience an economic impact are post-secondary educational institutions and entities that provide national test administration services.  In assessing the economic impact of the proposed rules, the DOJ considered nothing other than the cost of providing testing accommodations for these two types of entities.  The DOJ determined that these testing accommodations would cost $382 million over eleven years (calculated at present value with a 7% discount rate).

We are somewhat skeptical of the DOJ’s claims on several fronts.

First, with regard to the increased number of covered individuals, we do not see why the increase would be limited to people with ADD or learning disabilities.  By mandating that the definition of “disability” must be construed broadly, the proposed rules would likely cover more people with other types of impairments as well.  For example, people with mobility limitations that might not have been significant enough to be considered a disability before the ADAAA was passed may now be disabled under the new broader interpretation.

Second, with respect to the types of businesses that would be impacted, we question why DOJ concluded that only testing agencies and post-secondary schools would be affected.  Why wouldn’t an amusement park be affected by the increase in the number of people who can claim the right to ride Segways because of a disability?  Likewise, why wouldn’t all educational institutions be impacted by an increase in the number of people who can now seek accommodations under the ADA because of their ADD or learning disability?  DOJ’s rationale for limiting its cost impact analysis to post-secondary educational institutions — that elementary and secondary educational institutions already have to provide accommodations under the Individuals with Disabilities Education Act (IDEA) — is flawed.  Private elementary and secondary schools are not covered by the IDEA.  Thus, an increase in the number of covered individuals with ADD and learning disabilities will result in a higher demand for modifications to normal policies and auxiliary aids and services.

Third, the DOJ’s conclusion that the proposed regulations would only result in a need for testing accommodations for more people with ADD and learning disabilities is strange.  Why would the requests for accommodations be limited to testing scenarios?  A person with ADD or a learning disability could ask for auxiliary aids and services or modifications to policies, practices, and procedures beyond testing accommodations.  For example, a child with ADD or a learning disability could request additional assistance or instruction from an educational institution, or perhaps even a childcare center that provides some educational programs.

By increasing the number of people who have a “disability” and are covered by the ADA, the proposed rules and the ADAAA will increase the number of people who will seek, and be entitled to, auxiliary aids and services and modifications to policies, practices, and procedures.   All industries will likely feel this impact but the educational institutions and testing services will likely feel it the most.  These two industries should review their existing policies and procedures relating to the provision of auxiliary aids and services as well as the modification of policies, practices and procedures to ensure that their reviews of accommodation requests take the new rules into account.

Outside of the educational and testing industries, the proposed regulations will not significantly change how covered entities interact with persons with claimed disabilities.  Existing regulations substantially limit what a covered entity can ask a person about the nature of his or her claimed disability in most instances.  Thus, the new rules of construction applicable to the determination of whether a person has an impairment that “substantially limits” his or her ability to perform a “major life activity” would  rarely arise.  For example, if a guest comes into a hotel with a service animal or riding a Segway, DOJ regulations do not allow the hotel to ask questions about the nature of the guest’s disability.

The proposed regulations will limit the ability of defendants in all industries to defend lawsuits brought under Titles II and III of the ADA because it will be more difficult to claim that a plaintiff does not have a disability.  Since enacted in 1990, many courts have narrowly interpreted the term “disability” which allowed defendants to successfully argue that certain individuals were not even covered by the ADA, without ever reaching the question of reasonable accommodations.   While establishing that an impairment rises to the level of a disability remains a threshold issue in all ADA cases, the proposed regulations direct courts to apply less scrutiny to this issue and to embrace a broad interpretation of the definition of “disability” that favors plaintiffs.

What’s next.   The comment period for the proposed regulations ends on March 31, 2014.  Public accommodations should consider filing comments addressing potential costs and impacts that the DOJ failed to consider.  That said, the prospect of DOJ making any significant changes to the proposed regulations is unlikely because the regulations track the ADAAA (and the EEOC regulations) closely.