On September 25, 2008, President George W. Bush signed the ADA Amendments Act of 2008 (ADAAA) into law. The ADAAA became effective on January 1, 2009. The ADAAA's stated purpose was to reinstate a "broad scope of protection" under the Act by expanding the definition of the term "disability." To do so, the ADAAA overturned several U.S. Supreme Court decisions and ushered in a new era under the ADA.

In enacting the ADAAA, Congress also required the Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made to the statute. After receiving more than 600 comments during the public comment period, on March 25, 2011, the EEOC published its long-awaited final regulations and Interpretive Guidance on the ADAAA. The Regulations go into effect today, May 24, 2011.

See the Regulations

This article explores the several ways that the Regulations reinforce the changes set forth in the ADAAA.

THE BASIC FRAMEWORK REMAINS THE SAME

Before discussing the Regulations, it is important to note that the basic framework of the Act remains the same.

By way of summary, the ADA prohibits discrimination on the basis of a disability against a qualified individual in regard to hiring, advancement, discharge and terms and conditions of employment. The Act also prohibits retaliation.

The ADA also makes it unlawful not to make reasonable accommodations to the known disabilities of an otherwise qualified applicant or employee unless the employer can demonstrate it would pose an undue hardship.

The ADA defines a "disability" as:

  • a physical or mental impairment that substantially limits one or more "major life activities" of such individual ("actual" disability);
  • a record of such impairment ("record of"); or  
  • being regarded as having such an impairment ("regarded as").

TOP WAYS THAT THE REGULATIONS REINFORCE CHANGES TO THE ADA

Don't Expect to Win by Arguing That the Employee Is Not Disabled -- The New Focus Is On Whether the Employer Met Its Obligations Under the Act and Whether Discrimination Occurred

The Regulations reinforce that the primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. To effectuate this purpose, the ADAAA and the Regulations mandate that the definition of disability is to be construed broadly in favor of coverage.

Consequently, employers and their counsel need to re-orient their thinking and approach to disability-related litigation. As the Regulations state:

"The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis."

29 C.F.R. § 1630.1(c)(4).

Achieving Broad Coverage -- An Expansive Meaning of When an Impairment Substantially Limits a Major Life Activity

With the passage of the ADAAA, gone is the holding in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which created the demanding standard that to be "substantially limited" an individual must have an impairment that "prevents or severely restricts" the individual from performing activities that are of central importance to daily life.

The Regulations confirm that the new standard is quite different. Drawing from legislative history and terms of the ADAAA, the Regulations provide nine rules of construction to apply in determining whether an impairment is substantially limiting:

The term ''substantially limits'' shall be construed broadly in favor of expansive coverage. ''Substantially limits'' is not meant to be a demanding standard.

An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability.

The primary focus should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. Consequently, whether an impairment ''substantially limits'' a major life activity should not demand extensive analysis.

Whether an impairment substantially limits a major life activity requires an individualized assessment. In making this assessment, the term ''substantially limits'' shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ''substantially limits'' applied prior to the ADAAA.

The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical or statistical analysis.

Whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (except for ordinary eyeglasses or contact lenses).

An impairment that is episodic or in remission (i.e. epilepsy, cancer) is a disability if it would substantially limit a major life activity when active.

An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.

The six-month ''transitory'' part of the ''transitory and minor'' exception to ''regarded as'' coverage in § 1630.15(f) does not apply to the definition of ''disability'' under the ''actual disability'' prong or the ''record of'' prong. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.

29 C.F.R. § 1630.2(j)(1).

Important take-aways from the Rules of Construction: The focus is no longer on duration or permanency of a medical condition. The Regulations make clear than an impairment can be considered a disability even if it is only expected to last for a few months. The Interpretive Guidance provides this example: "If an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting and, therefore, covered under the first prong of the definition of disability."

While the Regulations continue to include language referencing the "condition, manner, and duration" in which a major life activity can be performed as a fact to be considered in determining whether an impairment is substantially limiting, the Regulations and Interpretive Guidance clarify that reference to duration only refers to the time it takes the individual to perform a major life activity as compared to most people in the general population and not to whether the impairment is permanent.

Achieving Broad Coverage -- Expansive Concept of Mental or Physical Impairment

Showing the intended breadth of coverage of the ADAAA, the Regulations explain that a "physical or mental impairment" is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulator, hemic, lymphatic, skin and endocrine.

They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness and specific learning disabilities. 29 C.F.R. § 1630.2(h).

Achieving Broad Coverage -- Expansive Concept of Major Life Activities

Consistent with the ADAAA, the Regulations reinforce the rejection of prior law by providing that whether an activity is a "major life activity," is not determined by reference to whether it is of "central importance to daily life." The Regulations go on to give specific examples of major life activities and indicate that these are examples, but not limitations, to the types of activities that can meet the definition. Notably, the Regulations add new activities to the list set forth in the ADAAA, including reaching and interacting with others. While the ADAAA indicated that operation of major bodily functions was included in the concept of major life activities, the Regulations add to the list in the ADAAA by including special sense organs, skin and the genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal systems. 29 C.F.R. § 1630.2(i).

Achieving Broad Coverage -- "Predictable Assessments"

While the Regulations provide no "per se" disabilities and emphasize that an individual assessment is required, there are certain conditions that "virtually always" will be considered disabilities. These include deafness, blindness, intellectual disability, missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infections, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia. 29 C.F.R. § 1630.2(j)(3).

The New Importance of the "Regarded As" Prong

One of the significant aspects of the Regulations is the discussion of coverage under the "regarded as" prong of the definition of disability. The ADAAA broadened this prong by prohibiting discrimination because of an actual or perceived physical or mental impairment whether or not that impairment substantially limits or is perceived to substantially limit a major life activity. The Regulations emphasize the scope of the regarded as prong and confirm that prohibited actions under this prong include refusal to hire, demotion, placement on involuntary leave, termination, harassment and denials of other terms and conditions of employment.

The Regulations also indicate that the "regarded as" definition of disability will be the "primary" means for bringing disability discrimination claims when an accommodation request is not involved. The reason for this emphasis is to make it easier for the employee to obtain coverage under the definition of disability.

The Regulations also explain the defense to claims of discrimination under the "regarded as" prong, which is available if the employer can establish that the impairment is or would be "transitory and minor." "Transitory" is defined as a condition that lasts less than six months. However, an employer's subjective belief that the impairment was transitory and minor is not sufficient. Rather, it must be proven that the impairment is or would be both transitory and minor. 29 C.F.R. § 1630.15(f).

The Interpretive Guidance gives two examples:

For example, an individual who is denied a promotion because he has a minor back injury would be ''regarded as'' an individual with a disability if the back impairment lasted or was expected to last more than six months. Although minor, the impairment is not transitory. Similarly, if an employer discriminates against an employee based on the employee's bipolar disorder (an impairment that is not transitory and minor), the employee is ''regarded as'' having a disability even if the employer subjectively believes that the employee's disorder is transitory and minor.

More Evidence of Intended Broader Coverage -- Elimination of the Term "Qualified Individual With a Disability"

Consistent with the elimination of the use of the term in the ADAAA, the EEOC Regulations also eliminate the term "qualified individual with a disability" from the Regulations and the Interpretive Guidance. In its place, the Regulations state that the ADAAA "prohibits discrimination on the basis of a disability against a qualified individual." This change is intended to remove the focus away from whether the employee meets the definition of "disability" and on whether the employer has discriminated or failed to reasonably accommodate. Thus, the Regulations explain that the term "qualified" with respect to an individual with a disability "means that the individual satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m).

Practical Considerations

With the Regulations and Interpretive Guidance reinforcing the concepts already in place under the ADAAA, several practical implications arise for employers and practitioners. Among the most important are the following:

  • The new focus should be on whether the employee is able to perform the essential functions of the job with or without reasonable accommodation and establishing that the employer engaged in a meaningful interactive accommodation process.
  • With the emphasis away from whether the employee is disabled and on discrimination and reasonable accommodation issues, more than ever employers need to ensure that the essential functions of positions are appropriately defined, documented and supportable. Now is the perfect time for employers to review current job descriptions and make any necessary updates. If the employer does not have job descriptions, it should seriously consider drafting job descriptions.
  • Employers need to ensure that human resources and management personnel are trained on the requirements of the ADAAA and the Regulations and are prepared to address the fact that medical impairments, regardless of the duration, may now implicate ADAAA concerns with respect to decisions concerning terms and conditions of employment.
  • Employers also need to ensure that human resources professionals and managers are trained and have the tools in place to show that they are engaging in an active and reasoned interactive process when individuals request accommodation. Now is the time to consider whether policies and procedures need to be updated to reflect the changed reality under the ADAAA.
  • Employers need to know how to exercise the rights that they have under the ADAAA. For instance, human resources professionals and managers should be trained to understand when they can request medical information or have an employee examined to determine whether the employee can perform the essential functions of his/her job.

Expect More Litigation -- A Couple of Practice Pointers

Since the ADAAA was passed, disability charges have increased substantially. With ADA enforcement being a clear priority for the EEOC, this number likely will continue to increase. This will translate into more lawsuits. With this in mind, the following are some litigartion pratice pointers to consider.

The Causation Standard -- "Motivating" Versus "Sole Factor" -- The Sixth Circuit Standard

The ADA prohibits discrimination "on the basis of" disability. 42 U.S.C. § 12112(a). Ten Circuit Courts of Appeal have considered this causation standard. Eight apply a "motivating factor" or "substantial cause" test requiring that a plaintiff must prove his or her disability was only a motivating factor of the adverse employment action to be successful. See Pinkerton v. Spellings, 529 F.3d 513, 518-19 (5th Cir. 2008). The Sixth Circuit, however, applies a more rigorous "sole factor" test. See Lewis v. Humboldt Acquisition Corp., 634 F.3d 879 (6th Cir. Mar. 17, 2011) (citing Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). The Tenth Circuit appears to apply the same test. Fitzgerald v. Corr. Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005) (rev'd on other grounds Jones v. Bock, 549 U.S. 199 (2007)).

Can You Get a Jury Trial or Compensatory and Punitive Damages in ADA Retaliation Cases?

Given the statutory language, courts are split on this issue. The Seventh and Ninth Circuits have held that no such damages or a jury trial are available. Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268-70 (9th Cir. 2009); Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 965 (7th Cir. 2004). Other Circuits have upheld such damage awards. Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1196-98 (8th Cir. 2001); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298, 314-15 (2d Cir. 1999).