In a public meeting held Wednesday, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to revise its Americans with Disabilities Act (ADA) regulations to conform with changes to the law made by the ADA Amendments Act of 2008 (ADAAA). The proposed revisions will now be forwarded to the Office of Management and Budget (OMB) for review before they can be formally published in the Federal Register.
The ADAAA – which was enacted in response to a number of U.S. Supreme Court cases that narrowly interpreted who could be considered “disabled” under the ADA – significantly expands the scope of this definition, and thus who may now bring suit under the ADA. Acting EEOC Vice Chair Christine M. Griffin stated in a press release:
These regulations will serve to shift the focus of the courts from further narrowing the definition of disability and putting it back to where Congress intended when the ADA was enacted in 1990. Courts should now focus on whether discrimination based on disability is occurring in the workplace. The protections afforded by the ADA AA and these new regulations are important for all workers including our returning wounded warriors who certainly deserve the right to re-enter a workforce free of discrimination.
During the public meeting, EEOC assistant legal counsel Christopher Kuczynski described the key ADA terms that would be affected by the proposed rule changes. A full copy of his statement can be found here. Of particular interest, the proposed rules would expand which activities would be considered “major life activities” under the ADA, such as reading, reaching, bending, sitting and communicating, as well as a list of “major bodily functions” such as normal cell growth and reproductive functions. Additionally, the proposed changes would loosen the standard for determining whether a particular impairment “substantially limits” a major life activity. For example, the proposed rules would stipulate that mitigating measures such as medication and prosthetic devices should not be taken into consideration in making this determination. The proposal also adds a list of conditions that would be presumptively considered substantially limiting under the ADA, including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, major depression, bipolar disorder, post-traumatic stress disorder and schizophrenia. Examples of impairments that may be considered substantially limiting depending on the individual’s circumstances include asthma, high blood pressure, coronary artery disease, carpal tunnel syndrome, among others.
With respect to whether an impairment would substantially limit the major life activity of “working,” the proposed regulations would place the focus on whether the individual is precluded from a “type of work” as opposed to a class or broad range of jobs. This standard of review makes it more likely that an individual would be considered disabled. Additionally, the proposal makes it a point to say that the fact that an individual has found another job would not be dispositive of whether he or she is substantially limited in the ability to work. The proposed changes would also make it easier for an individual to bring an ADA claim based on a “record” of having a disability, or being “regarded as” disabled.
A copy of the proposed rules will be available once they are published in the Federal Register following OPM review.
For more information on the ADAAA, see Littler’s ASAP: Congress Tells the Courts How to Interpret the ADA by Margaret Hart Edwards and Patrick F. Martin.
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