EEOC Issues Long-Awaited Regulations on Americans With Disabilities Act

The Equal
Employment Opportunity Commission (EEOC) recently issued final regulations implementing
statutory changes that expand the scope of employee protections for disability
discrimination. The regulations implement amendments to the Americans with
Disabilities Act (ADA) that make it easier for an individual to establish
disability status. Employers need to be aware of these changes, which greatly
increase their liability exposure for disability discrimination.

Background
Information

In
September 2008, in response to several Supreme Court decisions, Congress
enacted amendments to the ADA
to broaden the number of people the Act covered. Congress directed the EEOC to
issue implementing regulations, and in September 2009, the EEOC published its proposed
rules. After receiving more than 600 public comments, the EEOC released its
long-awaited final regulations in the Federal Register of March 25, 2011.

The ADA protects individuals
who (1) have a physical or mental impairment that substantially limits one or
more major life activities, (2) have a record of such an impairment, or (3) are
regarded as having such an impairment. While this three-pronged statutory
definition has not changed, the 2008 amendments to the ADA altered the way in which the ADA’s statutory terms are to be construed. The following is a summary of those
key statutory changes along with the EEOC’s new interpretations of them as
reflected in its newly-issued regulations:

Impairment
The final regulations clarify that
"physical or mental impairments" include mental or psychological
disorders, and any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more body systems, including neurological, musculoskeletal,
special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic,
skin, and endocrine.

Substantially
Limits

The ADA amendments lowered the
threshold for determining if an individual is “substantially limited” in a major
life function. To meet this new test, an individual no longer needs to
demonstrate that he or she is “severely restricted” but only that he or she is
substantially limited as compared to most people in the general population. The
final regulations underscore that substantial limitation does not require that
an impairment prevents, or even significantly or severely restricts, a major
life activity.

The
proposed regulations had listed a number of impairments that would
“consistently” meet the definition of disability. These impairments included
deafness, blindness, intellectual disability (formerly known as mental
retardation), partially or completely missing limbs, mobility impairment
requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes,
epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression,
bipolar disorder, post-traumatic stress disorder, obsessive-compulsive
disorder, and schizophrenia. The business community protested that this
provision conflicted with the ADA.
Responding to these concerns, the final regulations make clear that an
individualized assessment of impairment is always required, but that certain
impairments will “virtually always be found to impose a substantial
limitation.”

The ADA amendments provide
that impairments that are episodic or in remission may qualify for protection,
if, when active, they substantially limit a major life activity. The
final regulations contain a non-exhaustive list of impairments that could be
substantially limiting when active, including epilepsy, multiple sclerosis,
cancer, hypertension, diabetes, asthma, major depressive disorder, bipolar
disorder and schizophrenia.

The final regulations advise
employers and courts to consider the “condition, manner, or duration” in which
an individual performs an activity in determining whether the individual is
substantially limited. This assessment includes consideration of the
difficulty, effort or time required, and the pain involved, in performing a
major life activity, and/or the way an impairment affects a major bodily
function.

Major
Life Activity

The ADA amendments expanded the definition of
“major life activity” to include “the operation of major bodily functions, such
as the operation of the immune system or digestive system. In the final
regulations, the operation of a “major bodily function” is defined as including
the operation of an individual organ within a body system.

The final regulations clarify, where
the proposed regulations did not, that a major life activity need not be
determined by reference to whether the activity is central to daily life. In
clarifying this construction, the EEOC emphasized that “major” should not be
construed “strictly” to create a “demanding” standard.

The ADA amendments included
examples of major life activities, such as caring for oneself, performing
manual tasks, seeing, hearing, and so forth. The final regulations add sitting,
reaching, and interacting with others.

Regarded As
One of the
most significant changes in the ADA
amendments is its treatment of the “regarded as” prong of the analysis. Under
one of the tri-part definitions of disability noted above, an employer may be
liable for disability discrimination by taking action against an individual who
is merely “regarded as” having a disability. Under the ADA amendments, an
individual claiming discrimination on this basis can establish liability by
proving that an employer took an adverse action (such as failure to hire,
demotion, or termination) based simply on the employer perceiving the
individual as having an impairment, whether
or not the impairment (real or perceived) substantially limits a major life
function
. The ADA
amendments carve out two exceptions to this principle.

First,
minor and transitory impairments are not protected, and second, the duty to
accommodate does not apply to individuals who qualify for disability status
solely because they satisfy the “regarded as” prong. The final regulations
implement these changes and also point out that where a claim does not involve an employer’s failure to
provide a reasonable accommodation, an employee pursuing a disability
discrimination claim may find it easier to proceed on the “regarded as” prong; because,
in these cases, the statute no longer requires a showing of “substantial
limitation.”

Mitigating Measures
The ADA amendments indicate
that most mitigating measures (other than ordinary eyeglasses or contact
lenses) should not be considered in assessing disability status. The amended
statute lists examples of these  items,
such as medication, medical equipment and devices, and prosthetic limbs. The
final regulation cites psychotherapy, behavioral therapy, and physical therapy
as additional examples of mitigating measures. The proposed regulations had
included surgical interventions that do not permanently eliminate an
impairment. This language was deleted from the final regulations because it was
deemed confusing.

Advice for Employers
As a result
of the ADA
amendments and the EEOC’s new regulations, more individuals will be protected
by the Americans with Disabilities Act, increasing employers’ exposure to
disability discrimination claims. Key challenges for employers as they seek to
comply with these developments, include the following:

  • Making sure
    they recognize and respond appropriately to requests for reasonable
    accommodations 
  • Utilizing
    only objective medical evidence when evaluating employees’ disabilities
  • Ensuring
    that their managers and supervisors are trained on the legal requirements of
    the ADA

If you would like more information
about the newly-issued regulations, please contact Daniel S. Tarlow, chair of the firm’s employment practice group. He can be reached at 617 456 8013 or dtarlow@princelobel.com.