The Equal Employment Opportunity Commission has issued final regulations that clarify when employees qualify as “disabled,” paving the way for more disability claims against employers to go to trial.
The regulations issued last month provide additional guidance on the Americans with Disabilities Act Amendments Act (ADAAA), which went into effect in January 2009. Congress passed the ADAAA in response to earlier U.S. Supreme Court decisions that it said interpreted the definition of “disability” too narrowly.
To apply the ADA in a “predictable, consistent, and workable” manner, the regulations identify certain impairments that, “in virtually all cases,” are substantially limiting. A partial list: cancer, diabetes, epilepsy, multiple sclerosis, major depressive disorder, post-traumatic stress disorder, and schizophrenia. Disabilities were also redefined to include episodic conditions (such as epilepsy) or conditions in remission (such as cancer), provided the impairment would substantially limit a major life activity when active.
The new regulations go into effect on May 24. Their practical effect is that courts will spend less time determining whether a condition is covered under the law, and more time determining whether discrimination actually occurred, says Tom Bright, a shareholder of law firm OgleTree Deakins. “More disability discrimination cases will go to trial than in the past,” he says.
When Congress passed the ADAAA in 2009, it reaffirmed that the original intent of the American With Disabilities Act was that it be applied broadly. Under the ADA, a disability includes:
An actual physical or mental impairment that substantially limits major life activities;
A past history of such an impairment; or
Being “regarded as” having a disability.
The U.S. Supreme Court, however, began applying its own strict interpretation of the law. In one widely cited decision, Sutton v. United Airlines, the Court held that if a disability can be corrected or mitigated, employers can conclude that an impairment doesn't amount to a “substantial limitation,” and therefore isn't a disability. In Williams v. Toyota, the Court found that an impairment—regardless of a medical diagnosis—was only a disability if it limited a person's ability to perform “major life activities.”
Consequently, several lower courts began dismissing cases at summary judgment, basing decisions not on whether discrimination occurred, but whether the person was regarded disabled at all.
“By removing practically any burden on the employee to show that he or she is disabled, Congress and the EEOC have clearly shifted the burden to employers.”
Enter the 2009 amendments to the ADA, and the EEOC's latest rules. The regulations ease individuals' efforts to establish that they qualify under the “regarded as” part of the definition of disability; in the EEOC's words, determining whether an employee has a disability “should not demand extensive analysis.” The rules also state that mitigating measures should not be considered when defining a disability. “They want to get to the merits of why a person was terminated,” says Bright.
The regulations are all the more significant since disability claims are at an all-time high. The EEOC reported 25,165 disability discrimination claims filed under the ADA in 2010—the most since the law took effect in 1992, and up from 21,451 claims in 2009.
EEOC Commissioner Chai Felblum said in a statement she is confident the new regulations provide the right balance and will “work well for both people with disabilities and employers.”
The American Association of People With Disabilities expressed their support with the amendments. “The regulations will greatly simplify the determination of whether a person has a disability and allow courts and other decision makers to turn quickly to determining whether unlawful discrimination has occurred in the workplace,” the AAPD said in a statement.
Understanding the Rules
The following excerpt contains questions and answers that provide some information on the changes made to the regulations as a result of the ADAAA and identify certain regulations that remain the same:
1. Does the ADAAA apply to discriminatory acts that occurred prior to January 1, 2009?
No. The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009.
2. What is the purpose of the ADAAA?
Among the purposes of the ADAAA is the reinstatement of a “broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – had been unable to bring ADA claims because they were found not to meet the ADA's definition of “disability.” Yet, Congress thought that individuals with these and other impairments should be covered. The ADAAA explicitly rejected certain Supreme Court interpretations of the term “disability” and a portion of the EEOC regulations that it found had inappropriately narrowed the definition of disability. As a result of the ADAAA and EEOC's final regulations, it will be much easier for individuals seeking the law's protection to demonstrate that they meet the definition of “disability.” As a result, many more ADA claims will focus on the merits of the case.
3. Do all of the changes in the ADAAA apply to other titles of the ADA and provisions of the Rehabilitation Act prohibiting disability discrimination by federal agencies, federal contractors, and recipients of federal financial assistance?
Yes. The ADAAA specifically states that all of its changes also apply to:
section 501 of the Rehabilitation Act (federal employment),
section 503 of the Rehabilitation Act (federal contractors), and
section 504 of the Rehabilitation Act (recipients of federal financial assistance and services and programs of federal agencies).
The changes to the definition of disability also apply to all of the ADA's titles, including Title II (programs and activities of State and local government entities) and Title III (private entities that are considered places of public accommodation). A few provisions of the ADAAA affect only the portions of the ADA and the Rehabilitation Act concerning employment, such as a provision that requires covered entities to show that qualification standards that screen out individuals based on uncorrected vision are job-related and consistent with business necessity, and changes to the general prohibition of discrimination in § 102 of the ADA.
The EEOC's final regulations apply to Title I of the ADA and section 501 of the Rehabilitation Act, but they do not apply to Titles II and III of the ADA, or sections 503 and 504 of the Rehabilitation Act.
4. Who is required to comply with these regulations?
These regulations apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations (unions), and joint labor-management committees. [Section 1630.2(b)] Additionally, section 501 of the Rehabilitation Act applies to federal executive branch agencies regardless of the number of employees they have. The use of the term “covered entity” in this Q&A and the Appendix refers to all such entities.
5. How does the ADAAA define “disability?”
The ADAAA and the final regulations define a disability using a three-pronged approach:
a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or
a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”). [Section 1630.2(g)]
6. Must individuals use a particular prong of the definition of disability when challenging a covered entity's actions?
Not necessarily. Claims for denial of reasonable accommodation must be brought under one or both of the first two prongs of the definition of disability ( i.e., an actual disability and/or a record of a disability) since the ADAAA specifically states that those covered under only the “regarded as” definition are not entitled to reasonable accommodation. While other types of allegations ( e.g., failure to hire or promote, termination, harassment) may be brought under any of the definitions, an individual may find it easier to claim coverage under the “regarded as” definition of disability. An individual only has to meet one of the three prongs of the definition of “disability.” [Section 1630.2(g)(3) and Appendix Section 1630.2(g)]
Source: EEOC Q&A on ADAAA.
Employment lawyers say companies will now face serious new litigation risk. “By removing practically any burden on the employee to show that he or she is disabled, Congress and the EEOC have clearly shifted the burden to employers,” says Amy Pederson, a partner of law firm Stoel Rives.
The changes force employers to find ways they can provide reasonable accommodations to an expanded group of employees. “The expectation under the ADA is that employers will attempt to accommodate those individuals who may have any form of a mental or physical impairment to allow them to continue to work in their current position,” Bright says. “More and more people will be considered ‘covered' under these revised regulations.”
For example, employers might have to expand light-duty programs. Many have such programs in place for workers injured on the job to help integrate them back into the workforce. But most employers don't have light-duty programs for people who were injured outside of work, Bright says. That's something employers will probably have to address more thoughtfully, he adds.
Employers should “reassess their job descriptions, job qualification standards, and reasonable accommodation processes (including leave-of-absence procedures) to ensure that they are current and defensible,” according to legal bulletin from law firm Seyfarth Shaw.
Employers should also train supervisors and managers so they understand their role in the ADA process, “and to help prevent them from creating ‘regarded as' claims under the Act,” says Katherine Brooks, an associate of law firm Warner Norcross & Judd.
The regulations also clarify, with the exception of eyeglasses or contact lenses, “mitigating measures,” such as medication or assistive devices like hearing aids, must not be considered when determining whether someone has a disability.
The EEOC sets forth a list of principles to help determine whether a person has a disability. The new guidelines say that the impairment doesn't have to “prevent or severely or significantly restrict” performance of a major life activity to be considered a disability.
Not all think the regulations are bad news for employers. Peter Blanck, a professor at Syracuse University and chairman of its Burton Blatt Institute, says the regulations are actually “a win.” Having conducted several empirical studies on ADA implementation that have been cited by the EEOC, Blanck says that turnover and retention of qualified employees is the biggest cost concern to employers. “The EEOC regulations really reflect not a revolutionary idea, but rather evolutionary in a time of extreme business competitiveness and challenge to enable employers to retain and hire qualified people.”
The new regulations also don't restrict the job qualifications that employers may impose. Employers can still ask: Does this person have the ability to perform the essential functions of his job? “If the employer can't find a way to reasonably accommodate them and ends up terminating their employment, that's not discrimination, because they can't perform the central function of their job,” Bright says.
Blanck dismisses any criticism that the law is too broad and employer liability will go up. “All of that is not informed in my view,” he says.
“This is not about compliance,” he adds. “This is about business opportunity.” Employers who see it that way will not only get more customers, but have more productive employees, he says. “The best companies not only get this, but their economic bottom line is enhanced.”