EEOC Issues Final Regulations Implementing the ADAAA
By Mary Anne Ackourey

On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) published new regulations to implement the equal employment provisions of the Americans with Disabilities Act, as Amended (ADAAA).  One of the primary objectives of the ADAAA was to broaden the definition of the term “disability.”  This was motivated by a desire to make it easier for individuals to establish that they have disabilities within the meaning of the ADA.  This goal was accomplished, not by changing the definition of the word itself, but by changing the way in which it is to be interpreted. 

Consequently, “disability” still means “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.”  So what has changed?  Here are some of the highlights:

Major Life Activities

The new regulations expand upon the previous list of major life activities.  The new list, which the EEOC stresses is non-exhaustive, now includes activities like eating, sitting, lifting, and bending.  The new regulations also account for mental tasks like learning, reading, thinking, and interacting with others.  The operations of major bodily functions are also now included, so things like the functions of the immune system, special sense organs, and normal cell growth fall into the definition.  The new regulations also state that, in determining other examples of major life activities, the word “major” is not to be interpreted strictly to create a demanding standard for disability. 

Substantially Limits

The EEOC received many comments requesting that the term “substantially limits” be given a full and complete definition, something missing in the proposed regulations.  However, the EEOC decided that doing so would not be consistent with Congressional intent, so the term is still undefined.  The Commission has, however, stated that the term represents a lower threshold than “prevents” or “severely or significantly restricts,” a direct rebuff to prior Supreme Court holdings that had narrowly construed the meaning of “disability.” 
Under the final regulations, the test of whether an individual has a substantially limiting impairment will be a comparison of that individual’s ability to perform a major life activity to that of most people in the general population.  The new regulations also state that the determination will not take into account the ameliorative effects of mitigating measures other than ordinary eyeglasses or contact lenses.  Responding to comments on the proposed rules, the EEOC has added to the list of proposed examples of such measures.  Now included are psychotherapy, behavioral therapy, and physical therapy.  

In finalizing the regulations, the EEOC declined to adopt a specific minimum duration that an impairment’s effects must have in order to be covered.  Instead, impairments that only last a short period may be covered if they are sufficiently severe.  Prior to the ADAAA, the EEOC’s position had been that an impairment was a disability if it substantially limited, was expected to substantially limit, or had previously substantially limited a major life activity for at least several months.  Now, the EEOC will consider the duration of an impairment as only one factor in determining whether an impairment substantially limits a major life activity.

The proposed regulations also replaced the “class or broad range of jobs” concept with a “type of work” concept.  Under the proposed change, the focus would have been on an impairment’s effect on either the type of work performed by an individual in his or her job or on a job with similar qualifications.  In the final regulation, however, the EEOC opted to avoid including any method for analyzing the major life activity of working.  Instead, the “class or broad range of jobs” language has been retained but moved to the appendix.  This clearly opens the prospect of employees arguing that they are disabled because of an impairment in the performance of their job. 

Regarded As

Under prior regulations, a person was regarded as disabled if that person was perceived to have a disability that limited one or more major life activities.  Under the new regulations, a person proceeding under this prong may demonstrate a violation of the ADA by showing two things: that they have an impairment or were perceived by a covered entity to have an impairment and that the covered entity discriminated against them because of the impairment in violation of the statute.  However, the final regulation does offer an exception: a violation is not found when an employer shows that the impairment was both transitory and minor. 

The final regulations also specify that employers do not have to provide reasonable accommodations to individuals who meet the definition of disability solely under the “regarded as” prong. 

Reverse Discrimination

The EEOC has added a new provision to the prohibition against discrimination in which they specify that nothing in that provision shall “provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.”  This language prevents claims of so-called “reverse discrimination” from being made under the Act.  

Qualification Standards

The final regulation extends the prohibition against employers using qualification standards, employment tests, or other selection criteria to screen out persons with disabilities.  The prohibition now includes qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision.  Of course, such tests may be used if the standard, test, or criteria is job-related for the position in question and consistent with business necessity.

For employers, these and the other changes to the ADA represent a call to reassess employment practices in order to ensure compliance.  For better or worse, the EEOC has followed-through on its mandate, and it is now easier for individuals to establish that they have a disability within the meaning of the ADA.       

For more information, contact Mary Anne Ackourey at 770.818.1407 or [email protected] of the Labor & Employment Law Practice Group.



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