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EEOC's ADAAA Regulations More Bad News For Employers

It has been a rough year for employers so far after several adverse decisions from the Supreme Court.  Not wanting to be left out, the Equal Employment Opportunity Commission (EEOC) issued its final rule implementing regulations under the ADA Amendments Act (ADAAA) on March 25, 2011.  The new regulations go into effect on May 24, 2011.  There has been a lot of discussion online about the meaning of the regulations but they are not surprising and are for the most part consistent with the ADAAA itself.  The essence is that employers can forget about challenging a plaintiff’s claim that he or she is disabled in all but the most extreme cases.  As just about everyone previously concluded when the ADAAA became law, disability discrimination cases now turn on the reason for adverse employment action, the interactive process and/or the reasonableness of accommodations.  If you are interested in details, some specifics points from the regulations follow.

According to the regulations, “physical or mental impairment” means:

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, circulatory, hemic, lymphatic, skin, and endocrine; or

Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

One may ask what is not covered?  The EEOC helpfully points out that the following are not covered:

  • physical characteristics such as eye color, hair color, left-handedness;
  • height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder;
  • predisposition to illness or disease;
  • pregnancy (but not pregnancy-related impairments);
  • common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder;
  • Environmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record are not impairments;
  • Advanced age, in and of itself.

Major life activities include, but are not limited to:

Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and

The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

Notice that the list of specific activities is expanded in the first paragraph but is itself probably subsumed in the next paragraph by reference to every system in the body.  Also, the term “major” shall not be interpreted strictly to create a demanding standard for disability.  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 do not define “substantially limited” but provide rules of construction that appear to be designed to ensure that the use of the word substantially means nothing.  By way of example:

  • The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
  • 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 an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
  • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (except ordinary eyeglasses or contact lenses).

My dictionary defines “substantial” as: “to a great or significant extent.”  The EEOC must have used a different dictionary. 

No list of per se disabilities is included in the regulations but the EEOC notes that it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated:

  • Deafness substantially limits hearing;
  • blindness substantially limits seeing;
  • an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
  • autism substantially limits brain function;
  • cancer substantially limits normal cell growth;
  • cerebral palsy substantially limits brain function;
  • diabetes substantially limits endocrine function;
  • epilepsy substantially limits neurological function;
  • Human Immunodeficiency Virus (HIV) infection substantially limits immune function;
  • multiple sclerosis substantially limits neurological function;
  • muscular dystrophy substantially limits neurological function; and
  • major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.

The EEOC also takes an expansive view on “regarded as disabled” claims, noting that an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action 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.  An individual is “regarded as having such an impairment” any time a covered entity takes a prohibited action against the individual because of an actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action.  The EEOC suggests that employees who are not pursuing claims based on failure to accommodate should use the regarded as claim because it does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.

The regulations also provide employers with what appears to be an affirmative defense to “regarded as” claims:

It may be a defense to a charge of discrimination by an individual claiming coverage under the “regarded as” prong of the definition of disability that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) “transitory and minor.” To establish this defense, a covered entity must demonstrate that the impairment is both “transitory” and “minor.” Whether the impairment at issue is or would be “transitory and minor” is to be determined objectively. A covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor. For purposes of this section, “transitory” is defined as lasting or expected to last six months or less.

What steps should employers take before the regulations go into effect?  Initially, it would be wise to refresh managers’ training on handling disability issues.  The focus should be on the interactive process and managers must be reminded that there are no frivolous claims of disability under the current law and regulations.  Any adverse actions toward employees with known disabilities should be reviewed by human resources and/or inside or outside counsel.  Policies, manuals and forms should be updated to reflect the ADAAA and the new regulations where applicable.

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